WIPO Lex

Communications Act of 1934, as amended, Title 47 U.S.C., Section 151 et. seq

COMMUNICATIONS ACT OF 1934

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COMMUNICATIONS ACT OF 1934, AS AMENDED

[As Amended Through P.L. 112–96, Enacted February 22, 2012]

[Checking P.L. 113–4, Enacted March 7, 2013]

AN ACT To provide for the regulation of interstate and foreign communication by wire or radio, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

TITLE I—GENERAL PROVISIONS

SEC. 1. ø47 U.S.C. 151¿ PURPOSES OF ACT, CREATION OF FEDERAL COMMUNICATIONS COMMISSION.

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimi- nation on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio com- munication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of pro- moting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the ‘‘Federal Communications Commission,’’ which shall be con- stituted as hereinafter provided, and which shall execute and en- force the provisions of this Act. SEC. 2. ø47 U.S.C. 152¿ APPLICATION OF ACT.

(a) The provisions of this act shall apply to all interstate and foreign communication by wire or radio and all interstate and for- eign transmission of energy by radio, which originates and/or is re- ceived within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and to the licensing and regulating of all radio sta- tions as hereinafter provided; but it shall not apply to persons en- gaged in wire or radio communication or transmission in the Canal Zone, or to wire or radio communication or transmission wholly within the Canal Zone. The provisions of this Act shall apply with respect to cable service, to all persons engaged within the United States in providing such service, and to the facilities of cable opera- tors which relate to such service, as provided in title VI.

(b) Except as provided in sections 223 through 227, inclusive, and section 332, and subject to the provisions of section 301 and

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title VI, nothing in this Act shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifica- tions, practices, services, facilities, or regulations for or in connec- tion with intrastate communication service by wire or radio of any carrier, or (2) any carrier engaged in interstate or foreign commu- nication solely through physical connection with the facilities of an- other carrier not directly or indirectly controlling or controlled by, or under direct or indirect common control with such carrier, or (3) any carrier engaged in interstate or foreign communication solely through connection by radio, or by wire and radio, with facilities, located in an adjoining State or in Canada or Mexico (where they adjoin the State in which the carrier is doing business), of another carrier not directly or indirectly controlling or controlled by, or under direct or indirect common control with such carrier, or (4) any carrier to which clause (2) or clause (3) would be applicable ex- cept for furnishing interstate mobile radio communication service or radio communication service to mobile stations on land vehicles in Canada or Mexico; except that sections 201 through 205 of this Act, both inclusive, shall, except as otherwise provided therein, apply to carriers described in clauses (2), (3), and (4). SEC. 3. ø47 U.S.C. 153¿ DEFINITIONS.

For the purposes of this Act, unless the context otherwise re- quires—

(1) ADVANCED COMMUNICATIONS SERVICES.—The term ‘‘ad- vanced communications services’’ means—

(A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service.

(2) AFFILIATE.—The term ‘‘affiliate’’ means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another per- son. For purposes of this paragraph, the term ‘‘own’’ means to own an equity interest (or the equivalent thereof) of more than 10 percent.

(3) AMATEUR STATION.—The term ‘‘amateur station’’ means a radio station operated by a duly authorized person interested in radio technique solely with a personal aim and without pe- cuniary interest.

(4) AT&T CONSENT DECREE.—The term ‘‘AT&T Consent Decree’’ means the order entered August 24, 1982, in the anti- trust action styled United States v. Western Electric, Civil Ac- tion No. 82–0192, in the United States District Court for the District of Columbia, and includes any judgment or order with respect to such action entered on or after August 24, 1982.

(5) BELL OPERATING COMPANY.—The term ‘‘Bell operating company’’—

(A) means any of the following companies: Bell Tele- phone Company of Nevada, Illinois Bell Telephone Com- pany, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, New England Tele- phone and Telegraph Company, New Jersey Bell Tele- phone Company, New York Telephone Company, U S West

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Communications Company, South Central Bell Telephone Company, Southern Bell Telephone and Telegraph Com- pany, Southwestern Bell Telephone Company, The Bell Telephone Company of Pennsylvania, The Chesapeake and Potomac Telephone Company, The Chesapeake and Poto- mac Telephone Company of Maryland, The Chesapeake and Potomac Telephone Company of Virginia, The Chesa- peake and Potomac Telephone Company of West Virginia, The Diamond State Telephone Company, The Ohio Bell Telephone Company, The Pacific Telephone and Telegraph Company, or Wisconsin Telephone Company; and

(B) includes any successor or assign of any such com- pany that provides wireline telephone exchange service; but

(C) does not include an affiliate of any such company, other than an affiliate described in subparagraph (A) or (B). (6) BROADCAST STATION.—The term ‘‘broadcast station,’’

‘‘broadcasting station,’’ or ‘‘radio broadcast station’’ means a radio station equipped to engage in broadcasting as herein de- fined.

(7) BROADCASTING.—The term ‘‘broadcasting’’ means the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations.

(8) CABLE SERVICE.—The term ‘‘cable service’’ has the meaning given such term in section 602.

(9) CABLE SYSTEM.—The term ‘‘cable system’’ has the meaning given such term in section 602.

(10) CHAIN BROADCASTING.—The term ‘‘chain broadcasting’’ means simultaneous broadcasting of an identical program by two or more connected stations.

(11) COMMON CARRIER.—The term ‘‘common carrier’’ or ‘‘carrier’’ means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Act; but a person engaged in radio broadcasting shall not, inso- far as such person is so engaged, be deemed a common carrier.

(12) CONNECTING CARRIER.—The term ‘‘connecting carrier’’ means a carrier described in clauses (2), (3), or (4) of section 2(b).

(13) CONSTRUCTION PERMIT.—The term ‘‘construction per- mit’’ or ‘‘permit for construction’’ means that instrument of au- thorization required by this Act or the rules and regulations of the Commission made pursuant to this Act for the construction of a station, or the installation of apparatus, for the trans- mission of energy, or communications, or signals by radio, by whatever name the instrument may be designated by the Com- mission.

(14) CONSUMER GENERATED MEDIA.—The term ‘‘consumer generated media’’ means content created and made available by consumers to online websites and services on the Internet, including video, audio, and multimedia content.

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(15) CORPORATION.—The term ‘‘corporation’’ includes any corporation, joint-stock company, or association.

(16) CUSTOMER PREMISES EQUIPMENT.—The term ‘‘cus- tomer premises equipment’’ means equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications.

(17) DIALING PARITY.—The term ‘‘dialing parity’’ means that a person that is not an affiliate of a local exchange carrier is able to provide telecommunications services in such a man- ner that customers have the ability to route automatically, without the use of any access code, their telecommunications to the telecommunications services provider of the customer’s designation from among 2 or more telecommunications services providers (including such local exchange carrier).

(18) DISABILITY.—The term ‘‘disability’’ has the meaning given such term under section 3 of the Americans with Disabil- ities Act of 1990 (42 U.S.C. 12102).

(19) ELECTRONIC MESSAGING SERVICE.—The term ‘‘elec- tronic messaging service’’ means a service that provides real- time or near real-time non-voice messages in text form be- tween individuals over communications networks.

(20) EXCHANGE ACCESS.—The term ‘‘exchange access’’ means the offering of access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll services.

(21) FOREIGN COMMUNICATION.—The term ‘‘foreign commu- nication’’ or ‘‘foreign transmission’’ means communication or transmission from or to any place in the United States to or from a foreign country, or between a station in the United States and a mobile station located outside the United States.

(22) GREAT LAKES AGREEMENT.—The term ‘‘Great Lakes Agreement’’ means the Agreement for the Promotion of Safety on the Great Lakes by Means of Radio in force and the regula- tions referred to therein.

(23) HARBOR.—The term ‘‘harbor’’ or ‘‘port’’ means any place to which ships may resort for shelter or to load or unload passengers or goods, or to obtain fuel, water, or supplies. This term shall apply to such places whether proclaimed public or not and whether natural or artifical.

(24) INFORMATION SERVICE.—The term ‘‘information serv- ice’’ means the offering of a capability for generating, acquir- ing, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and in- cludes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a tele- communications service.

(25) INTERCONNECTED VOIP SERVICE.—The term ‘‘inter- connected VoIP service’’ has the meaning given such term under section 9.3 of title 47, Code of Federal Regulations, as such section may be amended from time to time.

(26) INTERLATA SERVICE.—The term ‘‘interLATA service’’ means telecommunications between a point located in a local

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access and transport area and a point located outside such area.

(27) INTEROPERABLE VIDEO CONFERENCING SERVICE.—The term ‘‘interoperable video conferencing service’’ means a serv- ice that provides real-time video communications, including audio, to enable users to share information of the user’s choos- ing.

(28) INTERSTATE COMMUNICATION.—The term ‘‘interstate communication’’ or ‘‘interstate transmission’’ means commu- nication or transmission (A) from any State, Territory, or pos- session of the United States (other than the Canal Zone), or the District of Columbia, to any other State, Territory, or pos- session of the United States (other than the Canal Zone), or the District of Columbia, (B) from or to the United States to or from the Canal Zone, insofar as such communication or transmission takes place within the United States, or (C) be- tween points within the United States but through a foreign country; but shall not, with respect to the provisions of title II of this Act (other than section 223 thereof), include wire or radio communication between points in the same State, Terri- tory, or possession of the United States, or the District of Co- lumbia, through any place outside thereof, if such communica- tion is regulated by a State commission.

(29) LAND STATION.—The term ‘‘land station’’ means a sta- tion, other than a mobile station, used for radio communication with mobile stations.

(30) LICENSEE.—The term ‘‘licensee’’ means the holder of a radio station license granted or continued in force under au- thority of this Act.

(31) LOCAL ACCESS AND TRANSPORT AREA.—The term ‘‘local access and transport area’’ or ‘‘LATA’’ means a contiguous geo- graphic area—

(A) established before the date of enactment of the Telecommunications Act of 1996 by a Bell operating com- pany such that no exchange area includes points within more than 1 metropolitan statistical area, consolidated metropolitan statistical area, or State, except as expressly permitted under the AT&T Consent Decree; or

(B) established or modified by a Bell operating com- pany after such date of enactment and approved by the Commission. (32) LOCAL EXCHANGE CARRIER.—The term ‘‘local exchange

carrier’’ means any person that is engaged in the provision of telephone exchange service or exchange access. Such term does not include a person insofar as such person is engaged in the provision of a commercial mobile service under section 332(c), except to the extent that the Commission finds that such serv- ice should be included in the definition of such term.

(33) MOBILE SERVICE.—The term ‘‘mobile service’’ means a radio communication service carried on between mobile sta- tions or receivers and land stations, and by mobile stations communicating among themselves, and includes (A) both one- way and two-way radio communication services, (B) a mobile service which provides a regularly interacting group of base,

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mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio com- munications by eligible users over designated areas of oper- ation, and (C) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled ‘‘Amendment to the Commission’s Rules to Establish New Personal Communications Services’’ (GEN Docket No. 90–314; ET Docket No. 92–100), or any successor proceeding.

(34) MOBILE STATION.—The term ‘‘mobile station’’ means a radio-communication station capable of being moved and which ordinarily does move.

(35) NETWORK ELEMENT.—The term ‘‘network element’’ means a facility or equipment used in the provision of a tele- communications service. Such term also includes features, functions, and capabilities that are provided by means of such facility or equipment, including subscriber numbers, databases, signaling systems, and information sufficient for billing and collection or used in the transmission, routing, or other provi- sion of a telecommunications service.

(36) NON-INTERCONNECTED VOIP SERVICE.—The term ‘‘non- interconnected VoIP service’’—

(A) means a service that— (i) enables real-time voice communications that

originate from or terminate to the user’s location using Internet protocol or any successor protocol; and

(ii) requires Internet protocol compatible customer premises equipment; and (B) does not include any service that is an inter-

connected VoIP service. (37) NUMBER PORTABILITY.—The term ‘‘number portability’’

means the ability of users of telecommunications services to re- tain, at the same location, existing telecommunications num- bers without impairment of quality, reliability, or convenience when switching from one telecommunications carrier to an- other.

(38)(A) OPERATOR.—The term ‘‘operator’’ on a ship of the United States means, for the purpose of parts II and III of title III of this Act, a person holding a radio operator’s license of the proper class as prescribed and issued by the Commission.

(B) ‘‘Operator’’ on a foreign ship means, for the purpose of part II of title III of this Act, a person holding a certificate as such of the proper class complying with the provision of the radio regulations annexed to the International Telecommuni- cation Convention in force, or complying with an agreement or treaty between the United States and the country in which the ship is registered.

(39) PERSON.—The term ‘‘person’’ includes an individual, partnership, association, joint-stock company, trust, or corpora- tion.

(40) RADIO COMMUNICATION.—The term ‘‘radio communica- tion’’ or ‘‘communication by radio’’ means the transmission by radio of writing, signs, signals, pictures, and sounds of all

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kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and de- livery of communications) incidental to such transmission.

(41)(A) RADIO OFFICER.—The term ‘‘radio officer’’ on a ship of the United States means, for the purpose of part II of title III of this Act, a person holding at least a first or second class radiotelegraph operator’s license as prescribed and issued by the Commission. When such person is employed to operate a radiotelegraph station aboard a ship of the United States, he is also required to be licensed as a ‘‘radio officer’’ in accordance with the Act of May 12, 1948 (46 U.S.C. 229a–h).

(B) ‘‘Radio officer’’ on a foreign ship means, for the purpose of part II of title III of this Act, a person holding at least a first or second class radiotelegraph operator’s certificate complying with the provisions of the radio regulations annexed to the International Telecommunication Convention in force.

(42) RADIO STATION.—The term ‘‘radio station’’ or ‘‘station’’ means a station equipped to engage in radio communication or radio transmission of energy.

(43) RADIOTELEGRAPH AUTO ALARM.—The term ‘‘radio- telegraph auto alarm’’ on a ship of the United States subject to the provisions of part II of title III of this Act means an automatic alarm receiving apparatus which responds to the ra- diotelegraph alarm signal and has been approved by the Com- mission. ‘‘Radiotelegraph auto alarm’’ on a foreign ship means an automatic alarm receiving apparatus which responds to the radiotelegraph alarm signal and has been approved by the gov- ernment of the country in which the ship is registered: Pro- vided, That the United States and the country in which the ship is registered are parties to the same treaty, convention, or agreement prescribing the requirements for such apparatus. Nothing in this Act or in any other provision of law shall be construed to require the recognition of a radiotelegraph auto alarm as complying with part II of title III of this Act, on a foreign ship subject to such part, where the country in which the ship is registered and the United States are not parties to the same treaty, convention, or agreements prescribing the requirements for such apparatus.

(44) RURAL TELEPHONE COMPANY.—The term ‘‘rural tele- phone company’’ means a local exchange carrier operating enti- ty to the extent that such entity—

(A) provides common carrier service to any local ex- change carrier study area that does not include either—

(i) any incorporated place of 10,000 inhabitants or more, or any part thereof, based on the most recently available population statistics of the Bureau of the Census; or

(ii) any territory, incorporated or unincorporated, included in an urbanized area, as defined by the Bu- reau of the Census as of August 10, 1993; (B) provides telephone exchange service, including ex-

change access, to fewer than 50,000 access lines;

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(C) provides telephone exchange service to any local exchange carrier study area with fewer than 100,000 ac- cess lines; or

(D) has less than 15 percent of its access lines in com- munities of more than 50,000 on the date of enactment of the Telecommunications Act of 1996. (45) SAFETY CONVENTION.—The term ‘‘safety convention’’

means the International Convention for the Safety of Life at Sea in force and the regulations referred to therein.

(46)(A) SHIP.—The term ‘‘ship’’ or ‘‘vessel’’ includes every description of watercraft or other artificial contrivance, except aircraft, used or capable of being used as a means of transpor- tation on water, whether or not it is actually afloat.

(B) A ship shall be considered a passenger ship if it carries or is licensed or certificated to carry more than twelve pas- sengers.

vessel except (1) the officers and crew actually employed to man and operate the ship, (2) persons employed to carry on the business of the ship, and (3) persons on board a ship when they are carried, either because of the obligation laid upon the master to carry shipwrecked, distressed, or other persons in like or similar situations or by reason of any circumstance over which neither the master, the owner, nor the charterer (if any) has control.

(E) ‘‘Nuclear ship’’ means a ship provided with a nuclear powerplant.

(47) STATE.—The term ‘‘State’’ includes the District of Co- lumbia and the Territories and possessions.

(48) STATE COMMISSION.—The term ‘‘State commission’’ means the commission, board, or official (by whatever name designated) which under the laws of any State has regulatory jurisdiction with respect to intrastate operations of carriers.

(49) STATION LICENSE.—The term ‘‘station license,’’ ‘‘radio station license,’’ or ‘‘license’’ means that instrument of author- ization required by this Act or the rules and regulations of the Commission made pursuant to this Act, for the use or oper- ation of apparatus for transmission of energy, or communica- tions, or signals by radio by whatever name the instrument may be designated by the Commission.

(50) TELECOMMUNICATIONS.—The term ‘‘telecommuni- cations’’ means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

(51) TELECOMMUNICATIONS CARRIER.—The term ‘‘tele- communications carrier’’ means any provider of telecommuni- cations services, except that such term does not include aggregators of telecommunications services (as defined in sec- tion 226). A telecommunications carrier shall be treated as a common carrier under this Act only to the extent that it is en- gaged in providing telecommunications services, except that the Commission shall determine whether the provision of fixed

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and mobile satellite service shall be treated as common car- riage.

(52) TELECOMMUNICATIONS EQUIPMENT.—The term ‘‘tele- communications equipment’’ means equipment, other than cus- tomer premises equipment, used by a carrier to provide tele- communications services, and includes software integral to such equipment (including upgrades).

(53) TELECOMMUNICATIONS SERVICE.—The term ‘‘tele- communications service’’ means the offering of telecommuni- cations for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, re- gardless of the facilities used.

(54) TELEPHONE EXCHANGE SERVICE.—The term ‘‘telephone exchange service’’ means (A) service within a telephone ex- change, or within a connected system of telephone exchanges within the same exchange area operated to furnish to sub- scribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the ex- change service charge, or (B) comparable service provided through a system of switches, transmission equipment, or other facilities (or combination thereof) by which a subscriber can originate and terminate a telecommunications service.

(55) TELEPHONE TOLL SERVICE.—The term ‘‘telephone toll service’’ means telephone service between stations in different exchange areas for which there is made a separate charge not included in contracts with subscribers for exchange service.

(56) TELEVISION SERVICE.— (A) ANALOG TELEVISION SERVICE.—The term ‘‘analog

television service’’ means television service provided pursu- ant to the transmission standards prescribed by the Com- mission in section 73.682(a) of its regulations (47 C.F.R. 73.682(a)).

(B) DIGITAL TELEVISION SERVICE.—The term ‘‘digital television service’’ means television service provided pursu- ant to the transmission standards prescribed by the Com- mission in section 73.682(d) of its regulations (47 C.F.R. 73.682(d)). (57) TRANSMISSION OF ENERGY BY RADIO.—The term

‘‘transmission of energy by radio’’ or ‘‘radio transmission of en- ergy’’ includes both such transmission and all instrumental- ities, facilities, and services incidental to such transmission.

(58) UNITED STATES.—The term ‘‘United States’’ means the several States and Territories, the District of Columbia, and the possessions of the United States, but does not include the Canal Zone.

(59) WIRE COMMUNICATION.—The term ‘‘wire communica- tion’’ or ‘‘communication by wire’’ means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of or- igin and reception of such transmission, including all instru- mentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communica- tions) incidental to such transmission.

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SEC. 4. ø47 U.S.C. 154¿ PROVISIONS RELATING TO THE COMMISSION. (a) The Federal Communications Commission (in this Act re-

ferred to as the ‘‘Commission’’) shall be composed of five Commis- sioners appointed by the President, by and with the advice and consent of the Senate, one of whom the President shall designate as chairman.

(b)(1) Each member of the Commission shall be a citizen of the United States.

(2)(A) No member of the Commission or person employed by the Commission shall—

(i) be financially interested in any company or other entity engaged in the manufacture or sale of telecommunications equipment which is subject to regulation by the Commission;

(ii) be financially interested in any company or other entity engaged in the business of communication by wire or radio or in the use of the electromagnetic spectrum;

(iii) be financially interested in any company or other enti- ty which controls any company or other entity specified in clause (i) or clause (ii), or which derives a significant portion of its total income from ownership of stocks, bonds, or other se- curities of any such company or other entity; or

(iv) be employed by, hold any official relation to, or own any stocks, bonds, or other securities of, any person signifi- cantly regulated by the Commission under this Act;

except that the prohibitions established in this subparagraph shall apply only to financial interests in any company or other entity which has a significant interest in communications, manufacturing, or sales activities which are subject to regulation by the Commis- sion.

(B)(i) The Commission shall have authority to waive, from time to time, the application of the prohibitions established in subpara- graph (A) to persons employed by the Commission if the Commis- sion determines that the financial interests of a person which are involved in a particular case are minimal, except that such waiver authority shall be subject to the provisions of section 208 of title 18, United States Code. The waiver authority established in this subparagraph shall not apply with respect to members of the Commission.

(ii) In any case in which the Commission exercises the waiver authority established in this subparagraph, the Commission shall publish notice of such action in the Federal Register and shall fur- nish notice of such action to the appropriate committees of each House of the Congress. Each such notice shall include information regarding the identity of the person receiving the waiver, the posi- tion held by such person, and the nature of the financial interests which are the subject of the waiver.

(3) The Commission, in determining whether a company or other entity has a significant interest in communications, manufac- turing, or sales activities which are subject to regulation by the Commission, shall consider (without excluding other relevant fac- tors)—

(A) the revenues, investments, profits, and managerial ef- forts directed to the related communications, manufacturing, or sales activities of the company or other entity involved, as com-

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pared to the other aspects of the business of such company or other entity;

(B) the extent to which the Commission regulates and oversees the activities of such company or other entity;

(C) the degree to which the economic interests of such com- pany or other entity may be affected by any action of the Com- mission; and

(D) the perceptions held by the public regarding the busi- ness activities of such company or other entity. (4) Members of the Commission shall not engage in any other

business, vocation, profession, or employment while serving as such members.

(5) The maximum number of commissioners who may be mem- bers of the same political party shall be a number equal to the least number of commissioners which constitutes a majority of the full membership of the Commission.

(c) Commissioners shall be appointed for terms of five years and until their successors are appointed and have been confirmed and taken the oath of office, except that they shall not continue to serve beyond the expiration of the next session of Congress subse- quent to the expiration of said fixed term of office; except that any person chosen to fill a vacancy shall be appointed only for the un- expired term of the Commissioner whom he succeeds. No vacancy in the Commission shall impair the right of the remaining commis- sioners to exercise all the powers of the Commission.

(d) Each Commissioner shall receive an annual salary at the annual rate payable from time to time for level IV of the Executive Schedule, payable in monthly installments. The Chairman of the Commission, during the period of his service as Chairman, shall re- ceive an annual salary at the annual rate payable from time to time for level III of the Executive Schedule.

(e) The principal office of the Commission shall be in the Dis- trict of Columbia, where its general sessions shall be held; but whenever the convenience of the public or of the parties may be promoted or delay or expense prevented thereby, the Commission may hold special sessions in any part of the United States.

(f)(1) The Commission shall have authority, subject to the pro- visions of the civil-service laws and the Classification Act of 1949, as amended, to appoint such officers, engineers, accountants, attor- neys, inspectors, examiners, and other employees as are necessary in the exercise of its functions.

(2) Without regard to the civil-service laws, but subject to the Classification Act of 1949, each commissioner may appoint three professional assistants and a secretary, each of whom shall perform such duties as such commissioner shall direct. In addition, the chairman of the Commission may appoint, without regard to the civil-service laws, but subject to the Classification Act of 1949, an administrative assistant who shall perform such duties as the chairman shall direct.

(3) The Commission shall fix a reasonable rate of extra com- pensation for overtime services of engineers in charge and radio en- gineers of the Field Engineering and Monitoring Bureau of the Federal Communications Commission, who may be required to re- main on duty between the hours of 5 o’clock postmeridian and 8

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o’clock antemeridian or on Sundays or holidays to perform services in connection with the inspection of ship radio equipment and ap- paratus for the purposes of part II of title III of this Act or the Great Lakes Agreement, on the basis of one-half day’s additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond 5 o’clock postmeridian (but not to ex- ceed two and one-half days’ pay for the full period from 5 o’clock postmeridian to 8 o’clock antemeridian) and two additional days’ pay for Sunday or holiday duty. The said extra compensation for overtime services shall be paid by the master, owner, or agent of such vessel to the local United States collector of customs or his representative, who shall deposit such collection into the Treasury of the United States to an appropriately designated receipt account: Provided, That the amounts of such collections received by the said collector of customs or his representatives shall be covered into the Treasury as miscellaneous receipts; and the payments of such extra compensation to the several employees entitled thereto shall be made from the annual appropriations for salaries and expenses of the Commission: Provided further, That to the extent that the an- nual appropriations which are hereby authorized to be made from the general fund of the Treasury are insufficient, there are hereby authorized to be appropriated from the general fund of the Treas- ury such additional amounts as may be necessary to the extent that the amounts of such receipts are in excess of the amounts ap- propriated: Provided further, That such extra compensation shall be paid if such field employees have been ordered to report for duty and have so reported whether the actual inspection of the radio equipment or apparatus takes place or not: And provided further, That in those ports where customary working hours are other than those hereinabove mentioned, the engineers in charge are vested with authority to regulate the hours of such employees so as to agree with prevailing working hours in said ports where inspec- tions are to be made, but nothing contained in this proviso shall be construed in any manner to alter the length of a working day for the engineers in charge and radio engineers or the overtime pay herein fixed: and Provided further, That, in the alternative, an en- tity designated by the Commission may make the inspections referred to in this paragraph.

(4)(A) The Commission, for purposes of preparing or admin- istering any examination for an amateur station operator license, may accept and employ the voluntary and uncompensated services of any individual who holds an amateur station operator license of a higher class than the class of license for which the examination is being prepared or administered. In the case of examinations for the highest class of amateur station operator license, the Commis- sion may accept and employ such services of any individual who holds such class of license.

(B)(i) The Commission, for purposes of monitoring violations of any provision of this Act (and of any regulation prescribed by the Commission under this Act) relating to the amateur radio service, may—

(I) recruit and train any individual licensed by the Com- mission to operate an amateur station; and

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15 Sec. 4COMMUNICATIONS ACT OF 1934

(II) accept and employ the voluntary and uncompensated services of such individual. (ii) The Commission, for purposes of recruiting and training in-

(iii) The functions of individuals recruited and trained under this subparagraph shall be limited to—

(I) the detection of improper amateur radio transmissions; (II) the conveyance to Commission personnel of informa-

tion which is essential to the enforcement of this Act (or regu- lations prescribed by the Commission under this Act) relating to the amateur radio service; and

(III) issuing advisory notices, under the general direction of the Commission, to persons who apparently have violated any provision of this Act (or regulations prescribed by the Com- mission under this Act) relating to the amateur radio service.

Nothing in this clause shall be construed to grant individuals re- cruited and trained under this subparagraph any authority to issue sanctions to violators or to take any enforcement action other than any action which the Commission may prescribe by rule.

(C)(i) The Commission, for purposes of monitoring violations of any provision of this Act (and of any regulation prescribed by the Commission under this Act) relating to the citizens band radio service, may—

(I) recruit and train any citizens band radio operator; and (II) accept and employ the voluntary and uncompensated

services of such operator. (ii) The Commission, for purposes of recruiting and training in-

dividuals under clause (i) and for purposes of screening, anno- tating, and summarizing violation reports referred under clause (i), may accept and employ the voluntary and uncompensated services of any citizens band radio operator organization. The Commission, in accepting and employing services of individuals under this sub- paragraph, shall seek to achieve a broad representation of individ- uals and organizations interested in citizens band radio operation.

(iii) The functions of individuals recruited and trained under this subparagraph shall be limited to—

(I) the detection of improper citizens band radio trans- missions;

(II) the conveyance to Commission personnel of informa- tion which is essential to the enforcement of this Act (or regu- lations prescribed by the Commission under this Act) relating to the citizens band radio service; and

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16Sec. 4 COMMUNICATIONS ACT OF 1934

(D) The Commission shall have the authority to endorse certifi- cation of individuals to perform transmitter installation, operation, maintenance, and repair duties in the private land mobile services and fixed services (as defined by the Commission by rule) if such certification programs are conducted by organizations or commit- tees which are representative of the users in those services and which consist of individuals who are not officers or employees of the Federal Government.

(E) The authority of the Commission established in this para- graph shall not be subject to or affected by the provisions of part III of title 5, United States Code, or section 3679(b) of the Revised Statutes (31 U.S.C. 665(b)).

(F) Any person who provides services under this paragraph shall not be considered, by reason of having provided such services, a Federal employee.

(G) The Commission, in accepting and employing services of in- dividuals under subparagraphs (A) and (B), shall seek to achieve a broad representation of individuals and organizations interested in amateur station operation.

(H) The Commission may establish rules of conduct and other regulations governing the service of individuals under this para- graph.

(I) With respect to the acceptance of voluntary uncompensated services for the preparation, processing, or administration of exami- nations for amateur station operator licenses, pursuant to subpara- graph (A) of this paragraph, individuals, or organizations which provide or coordinate such authorized volunteer services may re- cover from examinees reimbursement for out-of-pocket costs.

(5)(A) The Commission, for purposes of preparing and admin- istering any examination for a commercial radio operator license or endorsement, may accept and employ the services of persons that the Commission determines to be qualified. Any person so em- ployed may not receive compensation for such services, but may re- cover from examinees such fees as the Commission permits, consid- ering such factors as public service and cost estimates submitted by such person.

(B) The Commission may prescribe regulations to select, over- see, sanction, and dismiss any person authorized under this para- graph to be employed by the Commission.

(C) Any person who provides services under this paragraph or who provides goods in connection with such services shall not, by reason of having provided such service or goods, be considered a Federal or special government employee.

(g)(1) The Commission may make such expenditures (including expenditures for rent and personal services at the seat of govern- ment and elsewhere, for office supplies, lawbooks, periodicals, and books of reference, for printing and binding, for land for use as sites for radio monitoring stations and related facilities, including living quarters where necessary in remote areas, for the construc- tion of such stations and facilities, and for the improvement, fur- nishing, equipping, and repairing of such stations and facilities and of laboratories and other related facilities (including construction of minor subsidiary buildings and structures not exceeding $25,000 in any one instance) used in connection with technical research activi-

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17 Sec. 4COMMUNICATIONS ACT OF 1934

ties), as may be necessary for the execution of the functions vested in the Commission and as may be appropriated for by the Congress in accordance with the authorizations of appropriations established in section 6. All expenditures of the Commission, including all nec- essary expenses for transportation incurred by the commissioners or by their employees, under their orders, in making any investiga- tion or upon any official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chairman of the Commission or by such other members or officer thereof as may be designated by the Commission for that purpose.

(2)(A) If— (i) the necessary expenses specified in the last sentence of

paragraph (1) have been incurred for the purpose of enabling commissioners or employees of the Commission to attend and participate in any convention, conference, or meeting;

(ii) such attendance and participation are in furtherance of the functions of the Commission; and

(iii) such attendance and participation are requested by the person sponsoring such convention, conference, or meeting;

then the Commission shall have authority to accept direct reim- bursement from such sponsor for such necessary expenses.

(B) The total amount of unreimbursed expenditures made by the Commission for travel for any fiscal year, together with the total amount of reimbursements which the Commission accepts under subparagraph (A) for such fiscal year, shall not exceed the level of travel expenses appropriated to the Commission for such fiscal year.

(C) The Commission shall submit to the appropriate commit- tees of the Congress, and publish in the Federal Register, quarterly reports specifying reimbursements which the Commission has ac- cepted under this paragraph.

(D) The provisions of this paragraph shall cease to have any force or effect at the end of fiscal year 1994.

(E) Funds which are received by the Commission as reimburse- ments under the provisions of this paragraph after the close of a fiscal year shall remain available for obligation.

(3)(A) Notwithstanding any other provision of law, in further- ance of its functions the Commission is authorized to accept, hold, administer, and use unconditional gifts, donations, and bequests of real, personal, and other property (including voluntary and uncom- pensated services, as authorized by section 3109 of title 5, United States Code).

(B) The Commission, for purposes of providing radio club and military-recreational call signs, may utilize the voluntary, uncom- pensated, and unreimbursed services of amateur radio organiza- tions authorized by the Commission that have tax-exempt status under section 501(c)(3) of the Internal Revenue Code of 1986.

(C) For the purpose of Federal law on income taxes, estate taxes, and gift taxes, property or services accepted under the au- thority of subparagraph (A) shall be deemed to be a gift, bequest, or devise to the United States.

(D) The Commission shall promulgate regulations to carry out the provisions of this paragraph. Such regulations shall include

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18Sec. 4 COMMUNICATIONS ACT OF 1934

provisions to preclude the acceptance of any gift, bequest, or dona- tion that would create a conflict of interest or the appearance of a conflict of interest.

(h) Three members of the Commission shall constitute a quorum thereof. The Commission shall have an official seal which shall be judicially noticed.

(i) The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions.

(j) The Commission may conduct its proceedings in such man- ner as will best conduce to the proper dispatch of business and to the ends of justice. No commissioner shall participate in any hear- ing or proceeding in which he has a pecuniary interest. Any party may appear before the Commission and be heard in person or by attorney. Every vote and official act the Commission shall be en- tered of record, and its proceedings shall be public upon the re- quest of any party interested. The Commission is authorized to withhold publication of records or proceedings containing secret in- formation affecting the national defense.

(k) The Commission shall make an annual report to Congress, copies of which shall be distributed as are other reports trans- mitted to Congress. Such reports shall contain—

(1) such information and data collected by the Commission as may be considered of value in the determination of ques- tions connected with the regulation of interstate and foreign wire and radio communication and radio transmission of en- ergy;

(2) such information and data concerning the functioning of the Commission as will be of value to Congress in appraising the amount and character of the work and accomplishments of the Commission and the adequacy of its staff and equipment;

(3) an itemized statement of all funds expended during the preceding year by the Commission, of the sources of such funds, and of the authority in this Act or elsewhere under which such expenditures were made; and

(4) specific recommendations to Congress as to additional legislation which the Commission deems necessary or desir- able, including all legislative proposals submitted for approval to the Director of the Office of Management and Budget. (l) All reports of investigations made by the Commission shall

be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common carrier or li- censee that may have been complained of.

(m) The Commission shall provide for the publication of its re- ports and decisions in such form and manner as may be best adapt- ed for public information and use, and such authorized publications shall be competent evidence of the reports and decisions of the Commission therein contained in all courts of the United States and of the several States without any further proof or authentica- tion thereof.

(n) Rates of compensation of persons appointed under this sec- tion shall be subject to the reduction applicable to officers and em- ployees of the Federal Government generally.

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19 Sec. 5COMMUNICATIONS ACT OF 1934

(o) For the purpose of obtaining maximum effectiveness from the use of radio and wire communications in connection with safety of life and property, the Commission shall investigate and study all phases of the problem and the best methods of obtaining the co- operation and coordination of these systems. SEC. 5. ø47 U.S.C. 155¿ ORGANIZATION AND FUNCTIONING OF THE

COMMISSION. (a) The member of the Commission designated by the Presi-

dent as chairman shall be the chief executive officer of the Com- mission. It shall be his duty to preside at all meetings and sessions of the Commission, to represent the Commission in all matters re- lating to legislation and legislative reports, except that any com- missioner may present his own or minority views or supplemental reports, to represent the Commission in all matters requiring con- ferences or communications with other governmental officers, de- partments or agencies, and generally to coordinate and organize the work of the Commission in such manner as to promote prompt and efficient disposition of all matters within the jurisdiction of the Commission. In the case of a vacancy in the office of the chairman of the Commission, or the absence or inability of the chairman to serve, the Commission may temporarily designate one of its mem- bers to act as chairman until the cause or circumstance requiring such designation shall have been eliminated or corrected.

(b) From time to time as the Commission may find necessary, the Commission shall organize its staff into (1) integrated bureaus, to function on the basis of the Commission’s principal workload op- erations, and (2) such other divisional organizations as the Com- mission may deem necessary. Each such integrated bureau shall include such legal, engineering, accounting, administrative, clerical, and other personnel as the Commission may determine to be nec- essary to perform its functions.

(c)(1) When necessary to the proper functioning of the Commis- sion and the prompt and orderly conduct of its business, the Com- mission may, by published rule or by order, delegate any of its functions (except functions granted to the Commission by this para- graph and by paragraphs (4), (5), and (6) of this subsection and ex- cept any action referred to in sections 204(a)(2), 208(b), and 405(b)) to a panel of commissioners, an individual commissioner, an em- ployee board, or an individual employee, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter; except that in delegating review functions to employees in cases of adjudication (as defined in the Administrative Procedure Act), the delegation in any such case may be made only to an employee board consisting of two or more employees referred to in paragraph (8). Any such rule or order may be adopted, amended, or rescinded only by a vote of a majority of the members of the Commission then holding office. Except for cases involving the authorization of service in the in- structional television fixed service, or as otherwise provided in this Act, nothing in this paragraph shall authorize the Commission to provide for the conduct, by any person or persons other than per- sons referred to in paragraph (2) or (3) of section 556(b) of title 5, United States Code, of any hearing to which such section applies.

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20Sec. 5 COMMUNICATIONS ACT OF 1934

(2) As used in this subsection (d) the term ‘‘order, decision, re- port, or action’’ does not include an initial, tentative, or rec- ommended decision to which exceptions may be filed as provided in section 409(b).

(3) Any order, decision, report, or action made or taken pursu- ant to any such delegation, unless reviewed as provided in para- graph (4), shall have the same force and effect, and shall be made, evidenced, and enforced in the same manner, as orders, decisions, reports, or other actions of the Commission.

(4) Any person aggrieved by any such order, decision, report or action may file an application for review by the Commission within such time and in such manner as the Commission shall prescribe, and every such application shall be passed upon by the Commis- sion. The Commission, on its own initiative, may review in whole or in part, at such time and in such manner as it shall determine, any order, decision, report, or action made or taken pursuant to any delegation under paragraph (1).

(5) In passing upon applications for review, the Commission may grant, in whole or in part, or deny such applications without specifying any reasons therefore. No such application for review shall rely on questions of fact or law upon which the panel of com- missioners, individual commissioner, employee board, or individual employee has been afforded no opportunity to pass.

(6) If the Commission grants the application for review, it may affirm, modify, or set aside the order, decision, report, or action, or it may order a rehearing upon such order, decision, report, or ac- tion in accordance with section 405.

(7) The filing of an application for review under this subsection shall be a condition precedent to judicial review of any order, deci- sion, report, or action made or taken pursuant to a delegation under paragraph (1). The time within which a petition for review must be filed in a proceeding to which section 402(a) applies, or within which an appeal must be taken under section 402(b), shall be computed from the date upon which public notice is given of or- ders disposing of all applications for review filed in any case.

(8) The employees to whom the Commission may delegate re- view functions in any case of adjudication (as defined in the Ad- ministrative Procedure Act) shall be qualified, by reason of their training, experience, and competence, to perform such review func- tions, and shall perform no duties inconsistent with such review functions. Such employees shall be in a grade classification or sal- ary level commensurate with their important duties, and in no event less than the grade classification or salary level of the em- ployee or employees whose actions are to be reviewed. In the per- formance of such review functions such employees shall be assigned to cases in rotation so far as practicable and shall not be respon- sible to or subject to the supervision or direction of any officer, em- ployee, or agent engaged in the performance of investigative or prosecuting functions for any agency.

(9) The secretary and seal of the Commission shall be the sec- retary and seal of each panel of the Commission, each individual commissioner, and each employee board or individual employee ex- ercising functions delegated pursuant to paragraph (1) of this sub- section.

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1 Public Law 108–7, the Departments of Commerce, Justice, and State, the Judiciary, and Re- lated Agencies Appropriations Act, 2003 (117 Stat. 95, February 20, 2003) contained the fol- lowing appropriation provision with respect to fiscal year 2003:

FEDERAL COMMUNICATIONS COMMISSION

SALARIES AND EXPENSES

For necessary expenses of the Federal Communications Commission, as authorized by law, in- cluding uniforms and allowances therefor, as authorized by 5 U.S.C. 5901–5902; not to exceed $600,000 for land and structure; not to exceed $500,000 for improvement and care of grounds and repair to buildings; not to exceed $4,000 for official reception and representation expenses; purchase and hire of motor vehicles; special counsel fees; and services as authorized by 5 U.S.C. 3109, $271,000,000, of which not to exceed $300,000 shall remain available until September 30, 2004, for research and policy studies: Provided, That $269,000,000 of offsetting collections shall be assessed and collected pursuant to section 9 of title I of the Communications Act of 1934, as amended, and shall be retained and used for necessary expenses in this appropriation, and shall remain available until expended: Provided further, That the sum herein appropriated shall be reduced as such offsetting collections are received during fiscal year 2003 so as to result in a final fiscal year 2003 appropriation estimated at $2,000,000: Provided further, That any offset- ting collections received in excess of $269,000,000 in fiscal year 2003 shall remain available until expended, but shall not be available for obligation until October 1, 2003.

(d) Meetings of the Commission shall be held at regular inter- vals, not less frequently than once each calendar month, at which times the functioning of the Commission and the handling of its work load shall be reviewed and such orders shall be entered and other action taken as may be necessary or appropriate to expedite the prompt and orderly conduct of the business of the Commission with the objective of rendering a final decision (1) within three months from the date of filing in all original application, renewal, and transfer cases in which it will not be necessary to hold a hear- ing, and (2) within six months from the final date of the hearing in all hearing cases.

(e) The Commission shall have a Managing Director who shall be appointed by the Chairman subject to the approval of the Com- mission. The Managing Director, under the supervision and direc- tion of the Chairman, shall perform such administrative and execu- tive functions as the Chairman shall delegate. The Managing Di- rector shall be paid at a rate equal to the rate then payable for level V of the Executive Schedule. SEC. 6. ø47 U.S.C. 156¿ AUTHORIZATION OF APPROPRIATIONS.

(a) There are authorized to be appropriated for the administra- tion of this Act by the Commission $109,831,000 for fiscal year 1990 and $119,831,000 for fiscal year 1991, together with such sums as may be necessary for increases resulting from adjustments in salary, pay, retirement, other employee benefits required by law, and other nondiscretionary costs, for each of the fiscal years 1990 and 1991. 1

(b) In addition to the amounts authorized to be appropriated under this section, not more than 4 percent of the amount of any fees or other charges payable to the United States which are col- lected by the Commission during fiscal year 1990 are authorized to be made available to the Commission until expended to defray the fully distributed costs of such fees collection.

(c) Of the amounts appropriated pursuant to subsection (a) for fiscal year 1991, such sums as may be necessary not to exceed $2,000,000 shall be expended for upgrading and modernizing equip- ment at the Commission’s electronic emissions test laboratory lo- cated in Laurel, Maryland.

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22Sec. 7 COMMUNICATIONS ACT OF 1934

(d) Of the sum appropriated in any fiscal year under this sec- tion, a portion, in an amount determined under section 9(b), shall be derived from fees authorized by section 9. SEC. 7. ø47 U.S.C. 157¿ NEW TECHNOLOGIES AND SERVICES.

(a) It shall be the policy of the United States to encourage the provision of new technologies and services to the public. Any per- son or party (other than the Commission) who opposes a new tech- nology or service proposed to be permitted under this Act shall have the burden to demonstrate that such proposal is inconsistent with the public interest.

(b) The Commission shall determine whether any new tech- nology or service proposed in a petition or application is in the pub- lic interest within one year after such petition or application is filed. If the Commission initiates its own proceeding for a new tech- nology or service, such proceeding shall be completed within 12 months after it is initiated. SEC. 8. ø47 U.S.C. 158¿ APPLICATION FEES.

(a) The Commission shall assess and collect application fees at such rates as the Commission shall establish or at such modified rates as it shall establish pursuant to the provisions of subsection (b) of this section.

(b)(1) The Schedule of Application Fees established under this section shall be reviewed by the Commission every two years after October 1, 1991, and adjusted by the Commission to reflect changes in the Consumer Price Index. Increases or decreases in application fees shall apply to all categories of application fees, except that in- dividual fees shall not be adjusted until the increase or decrease, as determined by the net change in the Consumer Price Index since the date of enactment of this section, amounts to at least $5.00 in the case of fees under $100.00, or 5 percent in the case of fees of $100.00 or more. All fees which require adjustment will be rounded upward to the next $5.00 increment. The Commission shall trans- mit to the Congress notification of any such adjustment not later than 90 days before the effective date of such adjustment.

(2) Increases or decreases in application fees made pursuant to this subsection shall not be subject to judicial review.

(c)(1) The Commission shall prescribe by regulation an addi- tional application fee which shall be assessed as a penalty for late payment of application fees required by subsection (a) of this sec- tion. Such penalty shall be 25 percent of the amount of the applica- tion fee which was not paid in a timely manner.

(2) The Commission may dismiss any application or other filing for failure to pay in a timely manner any application fee or penalty under this section.

(d)(1) The application fees established under this section shall not be applicable (A) to governmental entities and nonprofit enti- ties licensed in the following radio services: Local Government, Po- lice, Fire, Highway Maintenance, Forestry-Conservation, Public Safety, and Special Emergency Radio, or (B) to governmental enti- ties licensed in other services.

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1 So in law. Probably should read ‘‘payment of an application fee’’. See the amendments made by section 6003(a)(2) of Pub. L. 103–66 (107 Stat. 401) and section 303(a)(3) of Pub. L. 103– 414 (108 Stat. 4294).

(2) The Commission may waive or defer payment of an charge 1 in any specific instance for good cause shown, where such action would promote the public interest.

(e) Moneys received from application fees established under this section shall be deposited in the general fund of the Treasury to reimburse the United States for amounts appropriated for use by the Commission in carrying out its functions under this Act.

(f) The Commission shall prescribe appropriate rules and regu- lations to carry out the provisions of this section.

(g) Until modified pursuant to subsection (b) of this section, the Schedule of Application Fees which the Federal Communications Commission shall prescribe pursuant to subsection (a) of this section shall be as follows:

SCHEDULE OF APPLICATION FEES Service Fee amount

PRIVATE RADIO SERVICES

1. Marine Coast Stations a. New License (per station) .................................................................... $70.00 b. Modification of License (per station) .................................................. 70.00 c. Renewal of License (per station) ......................................................... 70.00 d. Special Temporary Authority (Initial, Modifications, Extensions) ... 100.00 e. Assignments (per station) .................................................................... 70.00 f. Transfers of Control (per station) ........................................................ 35.00 g. Request for Waiver

(i) Routine (per request) ................................................................... 105.00 (ii) Non-Routine (per rule section/per station) ................................ 105.00

2. Ship Stations a. New License (per application) ............................................................. 35.00 b. Modification of License (per application) ........................................... 35.00 c. Renewal of License (per application) .................................................. 35.00 d. Request for Waiver

(i) Routine (per request) ................................................................... 105.00 (ii) Non-Routine (per rule section/per station) ................................ 105.00

3. Operational Fixed Microwave Stations a. New License (per station) .................................................................... 155.00 b. Modification of License (per station) .................................................. 155.00 c. Renewal of License (per station) ......................................................... 155.00 d. Special Temporary Authority (Initial, Modifications, Extensions) ... 35.00 e. Assignments (per station) .................................................................... 155.00 f. Transfers of Control (per station) ........................................................ 35.00 g. Request for Waiver

(i) Routine (per request) ................................................................... 105.00 (ii) Non-Routine (per rule section/per station) ................................ 105.00

4. Aviation (Ground Stations) a. New License (per station) .................................................................... 70.00 b. Modification of License (per station) .................................................. 70.00 c. Renewal of License (per station) ......................................................... 70.00 d. Special Temporary Authority (Initial, Modifications, Extensions) ... 100.00 e. Assignments (per station) .................................................................... 70.00 f. Transfers of Control (per station) ........................................................ 35.00 g. Request for Waiver

(i) Routine (per request) ................................................................... 105.00 (ii) Non-Routine (per rule section/per station) ................................ 105.00

5. Aircraft Stations a. New License (per application) ............................................................. 35.00 b. Modification of License (per application) ........................................... 35.00 c. Renewal of License (per application) .................................................. 35.00 d. Request for Waiver

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24Sec. 8 COMMUNICATIONS ACT OF 1934

(i) Routine (per request) ................................................................... 105.00 (ii) Non-Routine (per rule section/per station) ................................ 105.00

6. Land Mobile Radio Stations (including Special Emergency and Public Safety Stations)

a. New License (per call sign) .................................................................. 35.00 b. Modification of License (per call sign) ................................................ 35.00 c. Renewal of License (per call sign) ....................................................... 35.00 d. Special Temporary Authority (Initial, Modifications, Extensions) ... 35.00 e. Assignments (per station) .................................................................... 35.00 f. Transfers of Control (per call sign) ...................................................... 35.00 g. Request for Waiver

(i) Routine (per request) ................................................................... 105.00 (ii) Non-Routine (per rule section/per station) ................................ 105.00

h. Reinstatement (per call sign) .............................................................. 35.00 i. Specialized Mobile Radio Systems-Base Stations

(i) New License (per call sign) .......................................................... 35.00 (ii) Modification of License (per call sign) ....................................... 35.00 (iii) Renewal of License (per call sign) ............................................. 35.00 (iv) Waiting List (annual application fee per application) ............. 35.00 (v) Special Temporary Authority (Initial, Modifications, Exten-

sions) ............................................................................................... 35.00 (vi) Assignments (per call sign) ........................................................ 35.00 (vii) Transfers of Control (per call sign) .......................................... 35.00 (viii) Request for Waiver

(1) Routine (per request) ........................................................... 105.00 (2) Non-Routine (per rule section/per station) ......................... 105.00

(ix) Reinstatements (per call sign) ................................................... 35.00 j. Private Carrier Licenses

(i) New License (per call sign) .......................................................... 35.00 (ii) Modification of License (per call sign) ....................................... 35.00 (iii) Renewal of License (per call sign) ............................................. 35.00 (iv) Special Temporary Authority (Initial, Modifications, Exten-

sions) ............................................................................................... 35.00 (v) Assignments (per call sign) ......................................................... 35.00 (vi) Transfers of Control (per call sign) ........................................... 35.00 (vii) Request for Waiver

(1) Routine (per request) ........................................................... 105.00 (2) Non-Routine (per rule section/per station) ......................... 105.00

(viii) Reinstatements (per call sign) ................................................. 35.00 7. General Mobile Radio Service

a. New License (per call sign) .................................................................. 35.00 b. Modifications of License (per call sign) .............................................. 35.00 c. Renewal of License (per call sign) ....................................................... 35.00 d. Request for Waiver

(i) Routine (per request) ................................................................... 105.00 (ii) Non-Routine (per rule section/per station) ................................ 105.00

e. Special Temporary Authority (Initial, Modifications, Extensions) ... 35.00 f. Transfer of control (per call sign) ........................................................ 35.00

8. Restricted Radiotelephone Operator Permit ............................................. 35.00 9. Request for Duplicate Station License (all services) ................................ 35.00 10. Hearing (Comparative, New, and Modifications) .................................... 6,760.00

EQUIPMENT APPROVAL SERVICES/EXPERIMENTAL RADIO 1. Certification

a. Receivers (except TV and FM receivers) ............................................ 285.00 b. All Other Devices ................................................................................. 735.00 c. Modifications and Class II Permissive Changes ................................ 35.00 d. Request for Confidentiality ................................................................. 105.00

2. Type Acceptance a. All Devices ............................................................................................ 370.00 b. Modifications and Class II Permissive Changes ................................ 35.00 c. Request for Confidentiality .................................................................. 105.00

3. Type Approval (all devices) a. With Testing (including Major Modifications) ................................... 1,465.00 b. Without Testing (including Minor Modifications) ............................. 170.00 c. Request for Confidentiality .................................................................. 105.00

4. Notifications ................................................................................................. 115.00

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25 Sec. 8COMMUNICATIONS ACT OF 1934

5. Advance Approval for Subscription TV System ........................................ 2,255.00 a. Request for Confidentiality ................................................................. 105.00

6. Assignment of Grantee Code for Equipment Identification ..................... 35.00 7. Experimental Radio Service

a. New Construction Permit and Station Authorization (per applica- tion) ........................................................................................................ 35.00

b. Modification to Existing Construction Permit and Station Author- ization (per application) ....................................................................... 35.00

c. Renewal of Station Authorization (per application) .......................... 35.00 d. Assignment or Transfer of Control (per application) ........................ 35.00 e. Special Temporary Authority (per application) ................................. 35.00 f. Additional Application Fee for Applications Containing Requests to

Withhold Information From Public Inspection (per application) ...... 35.00

MASS MEDIA SERVICES

1. Commercial TV Stations a. New or Major Change Construction Permits ..................................... 2,535.00 b. Minor Change ....................................................................................... 565.00 c. Hearing (Major/Minor Change, Comparative New, or Comparative

Renewal) ................................................................................................ 6,760.00 d. License .................................................................................................. 170.00 e. Assignment or Transfer

(i) Long Form (Forms 314/315) ........................................................ 565.00 (ii) Short Form (Form 316) ............................................................... 80.00

f. Renewal ................................................................................................. 100.00 g. Call Sign (New or Modification) .......................................................... 55.00 h. Special Temporary Authority (other than to remain silent or ex-

tend an existing STA to remain silent) ............................................... 100.00 i. Extension of Time to Construct or Replacement of CP ...................... 200.00 j. Permit to Deliver Programs to Foreign Broadcast Stations .............. 55.00 k. Petition for Rulemaking for New Community of License ................. 1,565.00 l. Ownership Report (per report) ............................................................. 35.00

2. Commercial Radio Stations a. New and Major Change Construction Permit

(i) AM Station .................................................................................... 2,255.00 (ii) FM Station ................................................................................... 2,030.00

b. Minor Change (i) AM Station .................................................................................... 565.00 (ii) FM Station ................................................................................... 565.00

c. Hearing (Major/Minor Change, Comparative New, or Comparative Renewal) ................................................................................................ 6,760.00

d. License (i) AM ................................................................................................. 370.00 (ii) FM ................................................................................................ 115.00 (iii) AM Directional Antenna ............................................................ 425.00 (iv) FM Directional Antenna ............................................................ 355.00 (v) AM Remote Control ..................................................................... 35.00

e. Assignment or Transfer (i) Long Form (Forms 314/315) ........................................................ 565.00 (ii) Short Form (Form 316) ............................................................... 80.00

Class Channel ....................................................................................... 1,565.00 l. Ownership Report (per report) ............................................................. 35.00

3. FM Translators a. New or Major Change Construction Permit ...................................... 425.00 b. License .................................................................................................. 85.00 c. Assignment or Transfer ....................................................................... 80.00 d. Renewal ................................................................................................. 35.00 e. Special Temporary Authority (other than to remain silent or ex-

tend an existing STA to remain silent) ............................................... 100.00

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26Sec. 8 COMMUNICATIONS ACT OF 1934

4. TV Translators and LPTV Stations a. New or Major Change Construction Permit ...................................... 425.00 b. License .................................................................................................. 85.00 c. Assignment or Transfer ....................................................................... 80.00 d. Renewal ................................................................................................. 35.00 e. Special Temporary Authority (other than to remain silent or ex-

tend an existing STA to remain silent) ............................................... 100.00 5. Auxiliary Services (Includes Remote Pickup stations, TV Auxiliary

Broadcast stations, Aural Broadcast STL and Intercity Relay stations, and Low Power Auxiliary stations)

a. Major Actions ........................................................................................ 85.00 b. Renewals ............................................................................................... 35.00 c. Special Temporary Authority (other than to remain silent or ex-

tend an existing STA to remain silent) ............................................... 100.00 6. FM/TV Boosters

a. New and Major Change Construction Permits .................................. 425.00 b. License .................................................................................................. 85.00 c. Special Temporary Authority (other than to remain silent or ex-

tend an existing STA to remain silent) ............................................... 100.00 7. International Broadcast Station

a. New Construction Permit and Facilities Change CP ........................ 1,705.00 b. License .................................................................................................. 385.00 c. Assignment or Transfer (per station) .................................................. 60.00 d. Renewal ................................................................................................. 95.00 e. Frequency Assignment and Coordination (per frequency hour) ....... 35.00 f. Special Temporary Authority (other than to remain silent or ex-

tend an existing STA to remain silent) ............................................... 100.00 8. Cable Television Service

a. Cable Television Relay Service (i) Construction Permit ..................................................................... 155.00 (ii) Assignment or Transfer .............................................................. 155.00 (iii) Renewal ....................................................................................... 155.00 (iv) Modification ................................................................................. 155.00 (v) Special Temporary Authority (other than to remain silent or

extend an existing STA to remain silent) .................................... 100.00 b. Cable Special Relief Petition ............................................................... 790.00 c. 76.12 Registration Statement (per statement) ................................... 35.00 d. Aeronautical Frequency Usage Notifications (per notice) ................. 35.00 e. Aeronautical Frequency Usage Waivers (per waiver) ....................... 35.00

9. Direct Broadcast Satellite a. New or Major Change Construction Permit

(i) Application for Authorization to Construct a Direct Broadcast Satellite .......................................................................................... 2,030.00

(ii) Issuance of Construction Permit & Launch Authority .............19,710.00 (iii) License to Operate Satellite ...................................................... 565.00

b. Hearing (Comparative New, Major/Minor Modifications, or Com- parative Renewal) ................................................................................. 6,760.00

c. Special Temporary Authority (other than to remain silent or ex- tend an existing STA to remain silent) ............................................... 100.00

COMMON CARRIER SERVICES

1. All Common Carrier Services a. Hearing (Comparative New or Major/Minor Modifications) ............. 6,760.00 b. Development Authority (Same application fee as regular authority

in service unless otherwise indicated) c. Formal Complaints and Pole Attachment Complaints Filing Fee ... 120.00 d. Proceeding under section 109(b) of the Communications Assist-

ance for Law Enforcement Act ............................................................ 5,000 2. Domestic Public Land Mobile Stations (includes Base, Dispatch, Con-

trol & Repeater Stations) a. New or Additional Facility (per transmitter) ..................................... 230.00 b. Major Modifications (per transmitter) ................................................ 230.00 c. Fill In Transmitters (per transmitter) ................................................ 230.00 d. Major Amendment to a Pending Application (per transmitter) ....... 230.00 e. Assignment or Transfer

(i) First Call Sign on Application ..................................................... 230.00 (ii) Each Additional Call Sign .......................................................... 35.00

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27 Sec. 8COMMUNICATIONS ACT OF 1934

f. Partial Assignment (per call sign) ....................................................... 230.00 g. Renewal (per call sign) ......................................................................... 35.00 h. Minor Modification (per transmitter) ................................................. 35.00 i. Special Temporary Authority (per frequency/per location) ................ 200.00 j. Extension of Time to Construct (per application) ............................... 35.00 k. Notice of Completion of Construction (per application) .................... 35.00 l. Auxiliary Test Station (per transmitter) ............................................. 200.00 m. Subsidiary Communications Service (per request) ........................... 100.00 n. Reinstatement (per application) ......................................................... 35.00 o. Combining Call Signs (per call sign) .................................................. 200.00 p. Standby Transmitter (per transmitter/per location) ......................... 200.00 q. 900 MHz Nationwide Paging

(i) Renewal (1) Network Organizer ............................................................... 35.00 (2) Network Operator (per operator/per city) ........................... 35.00

r. Air-Ground Individual License (per station) (i) Initial License ............................................................................... 35.00 (ii) Renewal of License ...................................................................... 35.00 (iii) Modification of License .............................................................. 35.00

3. Cellular Systems (per system) a. New or Additional Facilities ................................................................ 230.00 b. Major Modification ............................................................................... 230.00 c. Minor Modification ............................................................................... 60.00 d. Assignment or Transfer (including partial) ....................................... 230.00 e. License to Cover Construction

(i) Initial License for Wireline Carrier ............................................ 595.00 (ii) Subsequent License for Wireline Carrier .................................. 60.00 (iii) License for Nonwireline Carrier ............................................... 60.00 (iv) Fill In License (all carriers) ....................................................... 60.00

f. Renewal ................................................................................................. 35.00 g. Extension of Time to Complete Construction .................................... 35.00 h. Special Temporary Authority (per system) ........................................ 200.00 i. Combining Cellular Geographic Service Areas (per system) ............. 50.00

4. Rural Radio (includes Central Office, Interoffice, or Relay Facilities) a. New or Additional Facility (per transmitter) ..................................... 105.00 b. Major Modification (per transmitter) .................................................. 105.00 c. Major Amendment to Pending Application (per transmitter) ........... 105.00 d. Minor Modification (per transmitter) ................................................. 35.00 e. Assignments or Transfers

(i) First Call Sign on Application ..................................................... 105.00 (ii) Each Additional Call Sign .......................................................... 35.00 (iii) Partial Assignment (per call sign) ............................................ 105.00

f. Renewal (per call sign) ......................................................................... 35.00 g. Extension of Time to Complete Construction (per application) ........ 35.00 h. Notice of Completion of Construction (per application) .................... 35.00 i. Special Temporary Authority (per frequency/per location) ................ 200.00 j. Reinstatement (per application) ........................................................... 35.00 k. Combining Call Signs (per call sign) .................................................. 200.00 l. Auxiliary Test Station (per transmitter) ............................................. 200.00 m. Standby Transmitter (per transmitter/per location) ........................ 200.00

5. Offshore Radio Service (Mobile, Subscriber, and Central Stations; fees would also apply to any expansion of this service into coastal waters other than the Gulf of Mexico)

a. New or Additional Facility (per transmitter) ..................................... 105.00 b. Major Modifications (per transmitter) ................................................ 105.00 c. Fill In Transmitters (per transmitter) ................................................ 105.00 d. Major Amendment to Pending Application (per transmitter) .......... 105.00 e. Minor Modification (per transmitter) ................................................. 35.00 f. Assignment or Transfer

(i) Each Additional Call Sign ........................................................... 35.00 (ii) Partial Assignment (per call sign) ............................................. 105.00

g. Renewal (per call sign) ......................................................................... 35.00 h. Extension of Time to Complete Construction (per application) ....... 35.00 i. Reinstatement (per application) ........................................................... 35.00 j. Notice of Completion of Construction (per application) ..................... 35.00 k. Special Temporary Authority (per frequency/per location) ............... 200.00 l. Combining Call Signs (per call sign) ................................................... 200.00 m. Auxiliary Test Station (per transmitter) ........................................... 200.00

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28Sec. 8 COMMUNICATIONS ACT OF 1934

n. Standby Transmitter (per transmitter/ per location) ........................ 200.00 6. Point-to-Point Microwave and Local Television Radio Service

a. Conditional License (per station) ........................................................ 155.00 b. Major Modification of Conditional License or License Authoriza-

tion (per station) ................................................................................... 155.00 c. Certification of Completion of Construction (per station) ................. 155.00 d. Renewal (per licensed station) ............................................................ 155.00 e. Assignment or Transfer

(i) First Station on Application ........................................................ 55.00 (ii) Each Additional Station .............................................................. 35.00

f. Extension of Construction Authorization (per station) ...................... 55.00 g. Special Temporary Authority or Request for Waiver of Prior Con-

struction Authorization (per request) .................................................. 70.00 7. Multipoint Distribution Service (including multichannel MDS)

a. Conditional License (per station) ........................................................ 155.00 b. Major Modification of Conditional License or License Authoriza-

tion (per station) ................................................................................... 155.00 c. Certification of Completion of Construction (per channel) ................ 455.00 d. Renewal (per licensed station) ............................................................ 155.00 e. Assignment or Transfer

(i) First Station on Application ........................................................ 55.00 (ii) Each Additional Station .............................................................. 35.00

f. Extension of Construction Authorization (per station) ...................... 110.00 g. Special Temporary Authority or Request for Waiver of Prior Con-

struction Authorization (per request) .................................................. 70.00 8. Digital Electronic Message Service

a. Conditional License (per nodal station) .............................................. 155.00 b. Modification of Conditional License or License Authorization (per

nodal station) ........................................................................................ 155.00 c. Certification of Completion of Construction (per nodal station) ....... 155.00 d. Renewal (per licensed nodal station) .................................................. 155.00 e. Assignment or Transfer

(i) First Station on Application ........................................................ 55.00 (ii) Each Additional Station .............................................................. 35.00

f. Extension of Construction Authorization (per station) ...................... 55.00 g. Special Temporary Authority or Request for Waiver of Prior Con-

struction Authorization (per request) .................................................. 70.00 9. International Fixed Public Radio (Public and Control Stations)

a. Initial Construction Permit (per station) ........................................... 510.00 b. Assignment or Transfer (per application) .......................................... 510.00 c. Renewal (per license) ............................................................................ 370.00 d. Modification (per station) .................................................................... 370.00 e. Extension of Construction Authorization (per station) ..................... 185.00 f. Special Temporary Authority or Request for Waiver (per request) 185.00

10. Fixed Satellite Transmit/Receive Earth Stations a. Initial Application (per station) .......................................................... 1,525.00 b. Modification of License (per station) .................................................. 105.00 c. Assignment or Transfer

(i) First Station on Application ........................................................ 300.00 (ii) Each Additional Station .............................................................. 100.00

d. Developmental Station (per station) ................................................... 1,000.00 e. Renewal of License (per station) ......................................................... 105.00 f. Special Temporary Authority or Waivers of Prior Construction Au-

thorization (per request) ....................................................................... 105.00 g. Amendment of Application (per station) ............................................ 105.00 h. Extension of Construction Permit (per station) ................................. 105.00

11. Small Transmit/Receive Earth Stations (2 meters or less and oper- ating in the 4/6 GHz frequency band)

a. Lead Application .................................................................................. 3,380.00 b. Routine Application (per station) ........................................................ 35.00 c. Modification of License (per station) ................................................... 105.00 d. Assignment or Transfer

(i) First Station on Application ........................................................ 300.00 (ii) Each Additional Station .............................................................. 35.00

e. Developmental Station (per station) ................................................... 1,000.00 f. Renewal of License (per station) .......................................................... 105.00

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29 Sec. 8COMMUNICATIONS ACT OF 1934

g. Special Temporary Authority or Waivers of Prior Construction Au- thorization (per request) ....................................................................... 105.00

h. Amendment of Application (per station) ............................................ 105.00 i. Extension of Construction Permit (per station) .................................. 105.00

12. Receive Only Earth Stations a. Initial Application for Registration ..................................................... 230.00 b. Modification of License or Registration (per station) ........................ 105.00 c. Assignment or Transfer

(i) First Station on Application ........................................................ 300.00 (ii) Each Additional Station .............................................................. 100.00

d. Renewal of License (per station) ......................................................... 105.00 e. Amendment of Application (per station) ............................................ 105.00 f. Extension of Construction Permit (per station) .................................. 105.00 g. Waivers (per request) ........................................................................... 105.00

13. Very Small Aperture Terminal (VSAT) Systems a. Initial Application (per system) .......................................................... 5,630.00 b. Modification of License (per system) .................................................. 105.00 c. Assignment or Transfer of System ...................................................... 1,505.00 d. Developmental Station ......................................................................... 1,000.00 e. Renewal of License (per system) ......................................................... 105.00 f. Special Temporary Authority or Waivers of Prior Construction Au-

thorization (per request) ....................................................................... 105.00 g. Amendment of Application (per system) ............................................ 105.00 h. Extension of Construction Permit (per system) ................................. 105.00

14. Mobile Satellite Earth Stations a. Initial Application of Blanket Authorization ..................................... 5,630.00 b. Initial Application for Individual Earth Station ................................ 1,350.00 c. Modification of License (per system) ................................................... 105.00 d. Assignment or Transfer (per system) ................................................. 1,505.00 e. Developmental Station ......................................................................... 1,000.00 f. Renewal of License (per system) .......................................................... 105.00 g. Special Temporary Authority or Waivers of Prior Construction Au-

thorization (per request) ....................................................................... 105.00 h. Amendment of Application (per system) ............................................ 105.00 i. Extension of Construction Permit (per system) .................................. 105.00

15. Radio determination Satellite Earth Stations a. Initial Application of Blanket Authorization ..................................... 5,630.00 b. Initial Application for Individual Earth Station ................................ 1,350.00 c. Modification of License (per system) ................................................... 105.00 d. Assignment or Transfer (per system) ................................................. 1,505.00 e. Developmental Station ......................................................................... 1,000.00 f. Renewal of License (per system) .......................................................... 105.00 g. Special Temporary Authority or Waivers of Prior Construction Au-

16. Space Stations a. Application for Authority to Construct ............................................... 2,030.00 b. Application for Authority to Launch & Operate

(i) Initial Application .........................................................................70,000.00 (ii) Replacement Satellite .................................................................70,000.00

c. Assignment or Transfer (per satellite) ................................................ 5,000.00 d. Modification .......................................................................................... 5,000.00 e. Special Temporary Authority or Waiver of Prior Construction Au-

thorization (per request) ....................................................................... 500.00 f. Amendment of Application ................................................................... 1,000.00 g. Extension of Construction Permit/Launch Authorization (per re-

quest) ..................................................................................................... 500.00 17. Section 214 Applications

a. Overseas Cable Construction .............................................................. 9,125.00 b. Cable Landing License

(i) Common Carrier ........................................................................... 1,025.00 (ii) Non-Common Carrier ..................................................................10,150.00

c. Domestic Cable Construction ............................................................... 610.00 d. All Other 214 Applications .................................................................. 610.00 e. Special Temporary Authority (all services) ........................................ 610.00 f. Assignments or Transfers (all services) .............................................. 610.00

18. Recognized Private Operating Status (per application) ......................... 610.00

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30Sec. 9 COMMUNICATIONS ACT OF 1934

19. Telephone Equipment Registration ......................................................... 155.00 20. Tariff Filings

a. Filing Fee .............................................................................................. 490.00 b. Special Permission Filing (per filing) ................................................. 490.00

21. Accounting and Audits a. Field Audit ............................................................................................62,290.00 b. Review of Attest Audit .........................................................................34,000.00 c. Review of Depreciation Update Study (Single State) ........................20,685.00

(i) Each Additional State .................................................................. 680.00 d. Interpretation of Accounting Rules (per request) .............................. 2,885.00 e. Petition for Waiver (per petition) ........................................................ 4,660.00

22. Low-Earth Orbit Satellite Systems a. Application for Authority to Construct (per system of technology

identical satellites) ................................................................................ 6,000.00 b. Application for Authority to Launch and Operate (per system of

technologically identical satellites) ......................................................210,000.00 c. Assignment or Transfer (per request) ................................................. 6,000.00 d. Modification (per request) ...................................................................15,000.00 e. Special Temporary Authority or Waiver of Prior Construction Au-

thorization (per request) ....................................................................... 1,500.00 f. Amendment of Application (per request) ............................................ 3,000.00 g. Extension of Construction Permit/Launch Authorization (per re-

quest) ..................................................................................................... 1,500.00

MISCELLANEOUS APPLICATION FEES

1. International Telecommunications Settlements Administrative Fee for Collections (per line item) ........................................................................... 2.00

2. Radio Operator Examinations .................................................................... a. Commercial Radio Operator Examination ......................................... 35.00 b. Renewal of Commercial Radio Operator License, Permit, or Cer-

tificate .................................................................................................... 35.00 c. Duplicate or Replacement Commercial Radio Operator License,

Permit, or Certificate ............................................................................ 35.00 3. Ship Inspections ..........................................................................................

a. Inspection of Oceangoing Vessels Under Title III, Part II of the Communications Act (per inspection) ................................................. 620.00

b. Inspection of Passenger Vessels Under Title III, Part III of the Communications Act (per inspection) ................................................. 320.00

c. Inspection of Vessels Under the Great Lakes Agreement (per in- spection) ................................................................................................. 75.00

d. Inspection of Foreign Vessels Under the Safety of Life at Sea (SOLAS) Convention (per inspection) ................................................. 540.00

e. Temporary Waiver for Compulsorily Equipped Vessel ..................... 60.00

SEC. 9. ø47 U.S.C. 159¿ REGULATORY FEES. (a) GENERAL AUTHORITY.—

(1) RECOVERY OF COSTS.—The Commission, in accordance with this section, shall assess and collect regulatory fees to re- cover the costs of the following regulatory activities of the Commission: enforcement activities, policy and rulemaking ac- tivities, user information services, and international activities.

(2) FEES CONTINGENT ON APPROPRIATIONS.—The fees de- scribed in paragraph (1) of this subsection shall be collected only if, and only in the total amounts, required in Appropria- tions Acts. (b) ESTABLISHMENT AND ADJUSTMENT OF REGULATORY FEES.—

(1) IN GENERAL.—The fees assessed under subsection (a) shall—

(A) be derived by determining the full-time equivalent number of employees performing the activities described in subsection (a) within the Private Radio Bureau, Mass Media Bureau, Common Carrier Bureau, and other offices of the Commission, adjusted to take into account factors

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31 Sec. 9COMMUNICATIONS ACT OF 1934

that are reasonably related to the benefits provided to the payor of the fee by the Commission’s activities, including such factors as service area coverage, shared use versus exclusive use, and other factors that the Commission de- termines are necessary in the public interest;

(B) be established at amounts that will result in collec- tion, during each fiscal year, of an amount that can rea- sonably be expected to equal the amount appropriated for such fiscal year for the performance of the activities de- scribed in subsection (a); and

(C) until adjusted or amended by the Commission pur- suant to paragraph (2) or (3), be the fees established by the Schedule of Regulatory Fees in subsection (g). (2) MANDATORY ADJUSTMENT OF SCHEDULE.—For any fiscal

year after fiscal year 1994, the Commission shall, by rule, re- vise the Schedule of Regulatory Fees by proportionate in- creases or decreases to reflect, in accordance with paragraph (1)(B), changes in the amount appropriated for the perform- ance of the activities described in subsection (a) for such fiscal year. Such proportionate increases or decreases shall—

(A) be adjusted to reflect, within the overall amounts described in appropriations Acts under the authority of paragraph (1)(A), unexpected increases or decreases in the number of licensees or units subject to payment of such fees; and

(B) be established at amounts that will result in collec- tion of an aggregate amount of fees pursuant to this sec- tion that can reasonably be expected to equal the aggre- gate amount of fees that are required to be collected by appropriations Acts pursuant to paragraph (1)(B).

Increases or decreases in fees made by adjustments pursuant to this paragraph shall not be subject to judicial review. In making adjustments pursuant to this paragraph the Commis- sion may round such fees to the nearest $5 in the case of fees under $1,000, or to the nearest $25 in the case of fees of $1,000 or more.

(3) PERMITTED AMENDMENTS.—In addition to the adjust- ments required by paragraph (2), the Commission shall, by regulation, amend the Schedule of Regulatory Fees if the Com- mission determines that the Schedule requires amendment to comply with the requirements of paragraph (1)(A). In making such amendments, the Commission shall add, delete, or reclas- sify services in the Schedule to reflect additions, deletions, or changes in the nature of its services as a consequence of Com- mission rulemaking proceedings or changes in law. Increases or decreases in fees made by amendments pursuant to this paragraph shall not be subject to judicial review.

(4) NOTICE TO CONGRESS.—The Commission shall— (A) transmit to the Congress notification of any adjust-

ment made pursuant to paragraph (2) immediately upon the adoption of such adjustment; and

(B) transmit to the Congress notification of any amendment made pursuant to paragraph (3) not later than 90 days before the effective date of such amendment.

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32Sec. 9 COMMUNICATIONS ACT OF 1934

prescribe by regulation an additional charge which shall be as- sessed as a penalty for late payment of fees required by sub- section (a) of this section. Such penalty shall be 25 percent of the amount of the fee which was not paid in a timely manner.

(2) DISMISSAL OF APPLICATIONS FOR FILINGS.—The Com- mission may dismiss any application or other filing for failure to pay in a timely manner any fee or penalty under this sec- tion.

(3) REVOCATIONS.—In addition to or in lieu of the penalties and dismissals authorized by paragraphs (1) and (2), the Com- mission may revoke any instrument of authorization held by any entity that has failed to make payment of a regulatory fee assessed pursuant to this section. Such revocation action may be taken by the Commission after notice of the Commission’s intent to take such action is sent to the licensee by registered mail, return receipt requested, at the licensee’s last known ad- dress. The notice will provide the licensee at least 30 days to either pay the fee or show cause why the fee does not apply to the licensee or should otherwise be waived or payment de- ferred. A hearing is not required under this subsection unless the licensee’s response presents a substantial and material question of fact. In any case where a hearing is conducted pur- suant to this section, the hearing shall be based on written evi- dence only, and the burden of proceeding with the introduction of evidence and the burden of proof shall be on the licensee. Unless the licensee substantially prevails in the hearing, the Commission may assess the licensee for the costs of such hear- ing. Any Commission order adopted pursuant to this sub- section shall determine the amount due, if any, and provide the licensee with at least 30 days to pay that amount or have its authorization revoked. No order of revocation under this subsection shall become final until the licensee has exhausted its right to judicial review of such order under section 402(b)(5) of this title. (d) WAIVER, REDUCTION, AND DEFERMENT.—The Commission

may waive, reduce, or defer payment of a fee in any specific in- stance for good cause shown, where such action would promote the public interest.

(e) DEPOSIT OF COLLECTIONS.—Moneys received from fees es- tablished under this section shall be deposited as an offsetting col- lection in, and credited to, the account providing appropriations to carry out the functions of the Commission.

(f) REGULATIONS.— (1) IN GENERAL.—The Commission shall prescribe appro-

priate rules and regulations to carry out the provisions of this section.

(2) INSTALLMENT PAYMENTS.—Such rules and regulations shall permit payment by installments in the case of fees in large amounts, and in the case of fees in small amounts, shall require the payment of the fee in advance for a number of years not to exceed the term of the license held by the payor.

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33 Sec. 9COMMUNICATIONS ACT OF 1934

(g) SCHEDULE.—Until amended by the Commission pursuant to subsection (b), the Schedule of Regulatory Fees which the Federal Communications Commission shall, subject to subsection (a)(2), assess and collect shall be as follows:

SCHEDULE OF REGULATORY FEES

Bureau/Category Annual Reg-ulatory Fee

Private Radio Bureau Exclusive use services (per license)

Land Mobile (above 470 MHz, Base Station and SMRS) (47 C.F.R. Part 90) ........................................................................ $16

Microwave (47 C.F.R. Part 94) .................................................. 16 Interactive Video Data Service (47 C.F.R. Part 95) ................ 16

Shared use services (per license unless otherwise noted) .............. 7 Amateur vanity call-signs ................................................................. 7

Mass Media Bureau (per license) AM radio (47 C.F.R. Part 73)

Class D Daytime ........................................................................ 250 Class A Fulltime ........................................................................ 900 Class B Fulltime ........................................................................ 500 Class C Fulltime ........................................................................ 200 Construction permits ................................................................. 100

FM radio (47 C.F.R. Part 73) Classes C, C1, C2, B .................................................................. 900 Classes A, B1, C3 ....................................................................... 600 Construction permits ................................................................. 500

TV (47 C.F.R. Part 73) VHF Commercial

Markets 1 thru 10 ............................................................... 18,000 Markets 11 thru 25 ............................................................. 16,000 Markets 26 thru 50 ............................................................. 12,000 Markets 51 thru 100 ........................................................... 8,000 Remaining Markets ............................................................ 5,000 Construction permits .......................................................... 4,000

UHF Commercial Markets 1 thru 10 ............................................................... 14,400 Markets 11 thru 25 ............................................................. 12,800 Markets 26 thru 50 ............................................................. 9,600 Markets 51 thru 100 ........................................................... 6,400 Remaining Markets ............................................................ 4,000 Construction permits .......................................................... 3,200

Low Power TV, TV Translator, and TV Booster (47 C.F.R. Part 74) ................................................................................................... 135

Broadcast Auxiliary (47 C.F.R. Part 74) ......................................... 25 International (HF) Broadcast (47 C.F.R. Part 73) .......................... 200 Cable Antenna Relay Service (47 C.F.R. Part 78) .......................... 220 Cable Television System (per 1,000 subscribers) (47 C.F.R. Part

76) ................................................................................................... 370 Common Carrier Bureau

Radio Facilities Cellular Radio (per 1,000 subscribers) (47 C.F.R. Part 22) .... 60 Personal Communications (per 1,000 subscribers) (47

C.F.R.) ..................................................................................... 60 Space Station (per operational station in geosynchronous

orbit) (47 C.F.R. Part 25) ....................................................... 65,000 Space Station (per system in low-earth orbit) (47 C.F.R. Part

25) ............................................................................................ 90,000 Public Mobile (per 1,000 subscribers) (47 C.F.R. Part 22) ..... 60 Domestic Public Fixed (per call sign) (47 C.F.R. Part 21) ...... 55 International Public Fixed (per call sign) (47 C.F.R. Part 23) 110

Earth Stations (47 C.F.R. Part 25) VSAT and equivalent C-Band antennas (per 100 antennas) 6 Mobile satellite earth stations (per 100 antennas) ................. 6

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34Sec. 10 COMMUNICATIONS ACT OF 1934

SCHEDULE OF REGULATORY FEES—CONTINUED

Bureau/Category Annual Reg-ulatory Fee

Earth station antennas Less than 9 meters (per 100 antennas) ............................ 6 9 Meters or more

Transmit/Receive and Transmit Only (per meter) .... 85 Receive only (per meter) .............................................. 55

Carriers Inter-Exchange Carrier (per 1,000 presubscribed access lines) .... 60 Local Exchange Carrier (per 1,000 access lines) ............................ 60 Competitive access provider (per 1,000 subscribers) ...................... 60 International circuits (per 100 active 64KB circuit or equivalent) 220

(h) EXCEPTIONS.—The charges established under this section shall not be applicable to (1) governmental entities or nonprofit en- tities; or (2) to amateur radio operator licenses under part 97 of the Commission’s regulations (47 C.F.R. Part 97).

(i) ACCOUNTING SYSTEM.—The Commission shall develop ac- counting systems necessary to making the adjustments authorized by subsection (b)(3). In the Commission’s annual report, the Com- mission shall prepare an analysis of its progress in developing such systems and shall afford interested persons the opportunity to sub- mit comments concerning the allocation of the costs of performing the functions described in subsection (a) among the services in the Schedule. SEC. 10. ø47 U.S.C. 160¿ COMPETITION IN PROVISION OF TELE-

COMMUNICATIONS SERVICE. (a) REGULATORY FLEXIBILITY.—Notwithstanding section

332(c)(1)(A) of this Act, the Commission shall forbear from applying any regulation or any provision of this Act to a telecommunications carrier or telecommunications service, or class of telecommuni- cations carriers or telecommunications services, in any or some of its or their geographic markets, if the Commission determines that—

(1) enforcement of such regulation or provision is not nec- essary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommuni- cations carrier or telecommunications service are just and rea- sonable and are not unjustly or unreasonably discriminatory;

(2) enforcement of such regulation or provision is not nec- essary for the protection of consumers; and

(3) forbearance from applying such provision or regulation is consistent with the public interest. (b) COMPETITIVE EFFECT TO BE WEIGHED.—In making the de-

termination under subsection (a)(3), the Commission shall consider whether forbearance from enforcing the provision or regulation will promote competitive market conditions, including the extent to which such forbearance will enhance competition among providers of telecommunications services. If the Commission determines that such forbearance will promote competition among providers of tele- communications services, that determination may be the basis for a Commission finding that forbearance is in the public interest.

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35 Sec. 201COMMUNICATIONS ACT OF 1934

(c) PETITION FOR FORBEARANCE.—Any telecommunications car- rier, or class of telecommunications carriers, may submit a petition to the Commission requesting that the Commission exercise the au- thority granted under this section with respect to that carrier or those carriers, or any service offered by that carrier or carriers. Any such petition shall be deemed granted if the Commission does not deny the petition for failure to meet the requirements for for- bearance under subsection (a) within one year after the Commis- sion receives it, unless the one-year period is extended by the Com- mission. The Commission may extend the initial one-year period by an additional 90 days if the Commission finds that an extension is necessary to meet the requirements of subsection (a). The Commis- sion may grant or deny a petition in whole or in part and shall ex- plain its decision in writing.

(d) LIMITATION.—Except as provided in section 251(f), the Com- mission may not forbear from applying the requirements of section 251(c) or 271 under subsection (a) of this section until it determines that those requirements have been fully implemented.

(e) STATE ENFORCEMENT AFTER COMMISSION FORBEARANCE.— A State commission may not continue to apply or enforce any provi- sion of this Act that the Commission has determined to forbear from applying under subsection (a). SEC. 11. ø47 U.S.C. 161¿ REGULATORY REFORM.

(a) BIENNIAL REVIEW OF REGULATIONS.—In every even-num- bered year (beginning with 1998), the Commission—

(1) shall review all regulations issued under this Act in ef- fect at the time of the review that apply to the operations or activities of any provider of telecommunications service; and

(2) shall determine whether any such regulation is no longer necessary in the public interest as the result of mean- ingful economic competition between providers of such service. (b) EFFECT OF DETERMINATION.—The Commission shall repeal

or modify any regulation it determines to be no longer necessary in the public interest. SEC. 12. ø47 U.S.C. 162¿ ADDITIONAL RESEARCH AUTHORITIES OF THE

FCC. In order to carry out the purposes of this Act, the Commission

may— (1) undertake research and development work in connec-

tion with any matter in relation to which the Commission has jurisdiction; and

(2) promote the carrying out of such research and develop- ment by others, or otherwise to arrange for such research and development to be carried out by others.

TITLE II—COMMON CARRIERS

PART I—COMMON CARRIER REGULATION

SEC. 201. ø47 U.S.C. 201¿ SERVICE AND CHARGES. (a) It shall be the duty of every common carrier engaged in

interstate or foreign communication by wire or radio to furnish

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36Sec. 201 COMMUNICATIONS ACT OF 1934

such communication service upon reasonable request therefor; and, in accordance with the orders of the Commission, in cases where the Commission, after opportunity for hearing, finds such action necessary or desirable in the public interest, to establish physical connections with other carriers, to establish through routes and charges applicable thereto and the divisions of such charges, and to establish and provide facilities and regulations for operating such through routes.

(b) All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful: Provided, That communications by wire or radio subject to this Act may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government and such other classes as the Commission may decide to be just and reasonable, and dif- ferent charges may be made for the different classes of comunications: Provided further, That nothing in this Act or in any other provision of law shall be construed to prevent a common car- rier subject to this Act from entering into or operating under any contract with any common carrier not subject to this Act, for the exchange of their services, if the Commission is of the opinion that such contract is not contrary to the public interest: Provided fur- ther, That nothing in this Act or in any other provision of law shall prevent a common carrier subject to this Act from furnishing re- ports of positions of ships at sea to newspapers of general circula- tion, either at a nominal charge or without charge, provided the name of such common carrier is displayed along with such ship po- sition reports. The Commissioner may prescribe such rules and reg- ulations as may be necessary in the public interest to carry out the provisions of this Act. SEC. 202. ø47 U.S.C. 202¿ DISCRIMINATION AND PREFERENCES.

(a) It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classi- fications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

(b) Charges or services, whenever referred to in this Act, in- clude charges for, or services in connection with, the use of common carrier lines of communication, whether derived from wire or radio facilities, in chain broadcasting or incidental to radio communica- tion of any kind.

(c) Any carrier who knowingly violates the provisions of this section shall forfeit to the United States the sum of $6,000 for each such offense and $300 for each and every day of the continuance of such offense. SEC. 203. ø47 U.S.C. 203¿ SCHEDULES OF CHARGES.

(a) Every common carrier, except connecting carriers, shall, within such reasonable time as the Commission shall designate, file with the Commission and print and keep open for public in-

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37 Sec. 204COMMUNICATIONS ACT OF 1934

spection schedules showing all charges for itself and its connecting carriers for interstate and foreign wire or radio communication be- tween the different points on its own system, and between points on its own system and points on the system of its connecting car- riers or points on the system of any other carrier subject to this Act when a through route has been established, whether such charges are joint or separate, and showing the classifications, practices, and regulations affecting such charges. Such schedules shall contain such other information, and be printed in such form, and be posted and kept open for public inspection in such places, as the Commis- sion may by regulation require, and each such schedule shall give notice of its effective date; and such common carrier shall furnish such schedules to each of its connecting carriers, and such con- necting carriers shall keep such schedules open for inspection in such public places as the Commission may require.

(b)(1) No change shall be made in the charges, classifications, regulations, or practices which have been so filed and published ex- cept after one hundred and twenty days notice to the Commission and to the public, which shall be published in such form and con- tain such information as the Commission may by regulations pre- scribe.

(2) The Commission may, in its discretion and for good cause shown, modify any requirement made by or under the authority of this section either in particular instances or by general order appli- cable to special circumstances or conditions except that the Com- mission may not require the notice period specified in paragraph (1) to be more than one hundred and twenty days.

(c) No carrier, unless otherwise provided by or under authority of this Act, shall engage or participate in such communication un- less schedules have been filed and published in accordance with the provisions of this Act and with the regulations made thereunder; and no carrier shall (1) charge, demand, collect, or receive a greater or less or different compensation, for such communication, or for any service in connection therewith, between the points named in any such schedule than the charges specified in the schedule then in effect, or (2) refund or remit by any means or device any portion of the charges so specified, or (3) extend to any person any privi- leges or facilities, in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, ex- cept as specified in such schedule.

(d) The Commission may reject and refuse to file any schedule entered for filing which does not provide and give lawful notice of its effective date. Any schedule so rejected by the Commission shall be void and its use shall be unlawful.

(e) In case of failure or refusal on the part of any carrier to comply with the provisions of this section or of any regulation or order made by the Commission thereunder, such carrier shall for- feit to the United States the sum of $6,000 for each such offense, and $300 for each and every day of the continuance of such offense. SEC. 204. ø47 U.S.C. 204¿ HEARING AS TO LAWFULNESS OF NEW

CHARGES; SUSPENSION. (a)(1) Whenever there is filed with the Commission any new or

revised charge, classification, regulation, or practice, the Commis- sion may either upon complaint or upon its own initiative without

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38Sec. 204 COMMUNICATIONS ACT OF 1934

1 Indentation so in original; should be moved 2-ems to the left.

complaint, upon reasonable notice, enter upon a hearing concerning the lawfulness thereof; and pending such hearing and the decision thereon the Commission, upon delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such sus- pension, may suspend the operation of such charge, classification, regulation, or practice, in whole or in part but not for a longer pe- riod than five months beyond the time when it would otherwise go into effect; and after full hearing the Commission may make such order with reference thereto as would be proper in a proceeding ini- tiated after such charge, classification, regulation, or practice had become effective. If the proceeding has not been concluded and an order made within the period of the suspension, the proposed new or revised charge, classification, regulation, or practice shall go into effect at the end of such period; but in case of a proposed charge for a new service or a revised charge, the Commission may by order require the interested carrier or carriers to keep accurate account of all amounts received by reason of such charge for a new service or revised charge, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such charge for a new service or revised charges as by its decision shall be found not justified. At any hear- ing involving a new or revised charge, or a proposed new or revised charge, the burden of proof to show that the new or revised charge, or proposed charge, is just and reasonable shall be upon the car- rier, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.

(2)(A) Except as provided in subparagraph (B), the Commission shall, with respect to any hearing under this section, issue an order concluding such hearing within 5 months after the date that the charge, classification, regulation, or practice subject to the hearing becomes effective.

(B) The Commission shall, with respect to any such hearing initiated prior to the date of enactment of this paragraph, issue an order concluding the hearing not later than 12 months after such date of enactment.

(3) 1 A local exchange carrier may file with the Commission a new or revised charge, classification, regulation, or practice on a streamlined basis. Any such charge, classification, regula- tion, or practice shall be deemed lawful and shall be effective 7 days (in the case of a reduction in rates) or 15 days (in the case of an increase in rates) after the date on which it is filed with the Commission unless the Commission takes action under paragraph (1) before the end of that 7-day or 15-day pe- riod, as is appropriate. (b) Notwithstanding the provisions of subsection (a) of this sec-

tion, the Commission may allow part of a charge, classification, regulation, or practice to go into effect, based upon a written show-

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39 Sec. 207COMMUNICATIONS ACT OF 1934

ing by the carrier or carriers affected, and an opportunity for writ- ten comment thereon by affected persons, that such partial author- ization is just, fair, and reasonable. Additionally, or in combination with a partial authorization, the Commission, upon a similar show- ing, may allow all or part of a charge, classification, regulation, or practice to go into effect on a temporary basis pending further order of the Commission. Authorizations of temporary new or in- creased charges may include an accounting order of the type pro- vided for in subsection (a). SEC. 205. ø47 U.S.C. 205¿ COMMISSION AUTHORIZED TO PRESCRIBE

JUST AND REASONABLE CHARGES. (a) Whenever, after full opportunity for hearing, upon a com-

plaint or under an order for investigation and hearing made by the Commission on its own initiative, the Commission shall be of opin- ion that any charge, classification, regulation, or practice of any carrier or carriers is or will be in violation of any of the provisions of this Act, the Commission is authorized and empowered to deter- mine and prescribe what will be the just and reasonable charge or the maximum or minimum, or maximum and minimum, charge or charges to be thereafter observed, and what classification, regula- tion, or practice is or will be just, fair, and reasonable, to be there- after followed, and to make an order that the carrier or carriers shall cease and desist from such violation to the extent that the Commission finds that the same does or will exist, and shall not thereafter publish, demand, or collect any charge other than the charge so prescribed, or in excess of the maximum or less than the minimum so prescribed, as the case may be, and shall adopt the classification and shall conform to and observe the regulation or practice so prescribed.

(b) Any carrier, any officer, representative, or agent of a car- rier, or any receiver, trustee, lessee, or agent of either of them, who knowingly fails or neglects to obey any order made under the provi- sions of this section shall forfeit to the United States the sum of $12,000 for each offense. Every distinct violation shall be a sepa- rate offense, and in case of continuing violation each day shall be deemed a separate offense. SEC. 206. ø47 U.S.C. 206¿ LIABILITY OF CARRIERS FOR DAMAGES.

In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this Act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case. SEC. 207. ø47 U.S.C. 207¿ RECOVERY OF DAMAGES.

Any person claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district court of

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40Sec. 208 COMMUNICATIONS ACT OF 1934

the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies. SEC. 208. ø47 U.S.C. 208¿ COMPLAINTS TO THE COMMISSION.

(a) Any person, any body politic or municipal organization, or State commission, complaining of anything done or omitted to be done by any common carrier subject to this Act, in contravention of the provisions thereof, may apply to said Commission by petition which shall briefly state the facts, whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been caused, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus com- plained of. If such carrier or carriers shall not satisfy the complaint within the time specified or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such man- ner and by such means as it shall deem proper. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant.

(b)(1) Except as provided in paragraph (2), the Commission shall, with respect to any investigation under this section of the lawfulness of a charge, classification, regulation, or practice, issue an order concluding such investigation within 5 months after the date on which the complaint was filed.

(2) The Commission shall, with respect to any such investiga- tion initiated prior to the date of enactment of this subsection, issue an order concluding the investigation not later than 12 months after such date of enactment.

(3) Any order concluding an investigation under paragraph (1) or (2) shall be a final order and may be appealed under section 402(a). SEC. 209. ø47 U.S.C. 209¿ ORDERS FOR PAYMENT OF MONEY.

If, after hearing on a complaint, the Commission shall deter- mine that any party complainant is entitled to an award of dam- ages under the provisions of this Act, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named. SEC. 210. ø47 U.S.C. 210¿ FRANKS AND PASSES.

(a) Nothing in this Act or in any other provision of law shall be construed to prohibit common carriers from issuing or giving franks to, exchanging franks with each other for the use of, their officers, agents, employees, and their families, or subject to such rules as the Commission may prescribe, from issuing, giving, or ex- changing franks and passes to or with other common carriers not subject to the provisions of this Act, for the use of their officers, agents, employees, and their families. The term ‘‘employees,’’ as used in this section, shall include furloughed, pensioned, and su- perannuated employees.

(b) Nothing in this Act or in any other provision of law shall be construed to prohibit common carriers from rendering to any

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41 Sec. 213COMMUNICATIONS ACT OF 1934

agency of the Government free service in connection with the prep- aration for the national defense: Provided, That such free service may be rendered only in accordance with such rules and regula- tions as the Commission may prescribe therefor. SEC. 211. ø47 U.S.C. 211¿ COPIES OF CONTRACTS TO BE FILED.

(a) Every carrier subject to this Act shall file with the Commis- sion copies of all contracts, agreements, or arrangements with other carriers, or with common carriers not subject to the provi- sions of this Act, in relation to any traffic affected by the provisions of this Act to which it may be a party.

(b) The Commission shall have authority to require the filing of any other contracts of any carrier, and shall also have authority to exempt any carrier from submitting copies of such minor con- tracts as the Commission may determine. SEC. 212. ø47 U.S.C. 212¿ INTERLOCKING DIRECTORATES—OFFICIALS

DEALING IN SECURITIES. It shall be unlawful for any person to hold the position of offi-

cer or director of more than one carrier subject to this Act, unless such holding shall have been authorized by order of the Commis- sion, upon due showing in form and manner prescribed by the Commission, that neither public nor private interests will be ad- versely affected thereby: Provided, That the Commission may au- thorize persons to hold the position of officer or director in more than one such carrier, without regard to the requirements of this section, where it has found that one of the two or more carriers di- rectly or indirectly owns more than 50 per centum of the stock of the other or others, or that 50 per centum or more of the stock of all such carriers is directly or indirectly owned by the same person. After this section takes effect it shall be unlawful for any officer or director of any carrier subject to this Act to receive for his own benefit directly or indirectly, any money or thing of value in respect of negotiation, hypothecation, or sale of any securities issued or to be issued by such carriers, or to share in any of the proceeds there- of, or to participate in the making or paying of any dividends of such carriers from any funds properly included in capital account. SEC. 213. ø47 U.S.C. 213¿ VALUATION OF CARRIER PROPERTY.

(a) The Commission may from time to time, as may be nec- essary for the proper administration of this Act, and after oppor- tunity for hearing, make a valuation of all or of any part of the property owned or used by any carrier subject to this Act, as of such date as the Commission may fix.

(b) The Commission may at any time require any such carrier to file with the Commission an inventory of all or of any part of the property owned or used by said carrier, which inventory shall show the units of said property classified in such detail, and in such manner, as the Commission shall direct, and shall show the estimated cost of reproduction new of said units, and their repro- duction cost new less depreciation, as of such date as the Commis- sion may direct; and such carrier shall file such inventory within such reasonable time as the Commission by order shall require.

(c) The Commission may at any time require any such carrier to file with the Commission a statement showing the original cost at the time of dedication to the public use of all or of any part of

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42Sec. 213 COMMUNICATIONS ACT OF 1934

the property owned or used by said carrier. For the showing of such original cost said property shall be classified, and the original cost shall be defined, in such manner as the Commission may prescribe; and if any part of such cost cannot be determined from accounting or other records, the portion of the property for which such cost cannot be determined shall be reported to the Commission; and if the Commission shall so direct, the original cost thereof shall be es- timated in such manner as the Commission may prescribe. If the carrier owning the property at the time such original cost is re- ported shall have paid more or less than the original cost to ac- quire the same, the amount of such cost of acquisition, and any facts which the Commission may require in connection therewith, shall be reported with such original cost. The report made by a car- rier under this paragraph shall show the source or sources from which the original cost reported was obtained, and such other infor- mation as to the manner in which the report was prepared, as the Commission shall require.

(d) Nothing shall be included in the original cost reported for the property of any carrier under paragraph (c) of this section on account of any easement, license, or franchise granted by the United States or by any State or political subdivision thereof, be- yond the reasonable necessary expense lawfully incurred in obtain- ing such easement, license, or franchise from the public authority aforesaid, which expense shall be reported separately from all other costs in such detail as the Commission may require; and nothing shall be included in any valuation of the property of any carrier made by the Commission on account of any such easement, license, or franchise, beyond such reasonable necessary expense lawfully in- curred as aforesaid.

(e) The Commission shall keep itself informed of all new con- struction, extensions, improvements, retirements, or other changes in the condition, quantity, use, and classification of the property of common carriers, and of the cost of all additions and betterments thereto and of all changes in the investment therein, and may keep itself informed of current changes in costs and values of carrier properties.

(f) For the purpose of enabling the Commission to make a valu- ation of any of the property of any such carrier, or to find the origi- nal cost of such property, or to find any other facts concerning the same which are required for use by the Commission, it shall be the duty of each such carrier to furnish to the Commission, within such reasonable time as the Commission may order, any information with respect thereto which the Commission may by order require, including copies of maps, contracts, reports of engineers, and other data, records, and papers, and to grant to all agents of the Com- mission free access to its property and its accounts, records, and memoranda whenever and wherever requested by any such duly authorized agent, and to cooperate with and aid the Commission in the work of making any such valuation of finding in such manner and to such extent as the Commission may require and direct, and all rules and regulations made by the Commission for the purpose of administering this section shall have the full force and effect of law. Unless otherwise ordered by the Commission, with the reasons therefor, the records and data of the Commission shall be open to

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43 Sec. 214COMMUNICATIONS ACT OF 1934

the inspection and examination of the public. The Commission, in making any such valuation, shall be free to adopt any method of valuation which shall be lawful.

(g) Nothing in this section shall impair or diminish the powers of any State commission. SEC. 214. ø47 U.S.C. 214¿ EXTENSION OF LINES.

(a) No carrier shall undertake the construction of a new line or of an extension of any line, or shall acquire or operate any line, or extension thereof, or shall engage in transmission over or by means of such additional or extended line, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line: Provided, That no such certificate shall be required under this section for the con- struction, acquisition, or operation of (1) a line within a single State unless such line constitutes part of an interstate line, (2) local, branch, or terminal lines not exceeding ten miles in length, or (3) any line acquired under section 221 of this Act: Provided fur- ther, That the Commission may, upon appropriate request being made, authorize temporary or emergency service, or the supplementing of existing facilities, without regard to the provi- sions of this section. No carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certifi- cate that neither the present nor future public convenience and ne- cessity will be adversely affected thereby; except that the Commis- sion may, upon appropriate request being made, authorize tem- porary or emergency discontinuance, reduction, or impairment of service, or partial discontinuance, reduction, or impairment of serv- ice, without regard to the provisions of this section. As used in this section the term ‘‘line’’ means any channel of communication estab- lished by the use of appropriate equipment, other than a channel of communication established by the interconnection of two or more existing channels: Provided, however, That nothing in this section shall be construed to require a certificate or other authorization from the Commission for any installation, replacement, or other changes in plant, operation, or equipment, other than new con- struction, which will not impair the adequacy or quality of service provided.

(b) Upon receipt of an application for any such certificate, the Commission shall cause notice thereof to be given to, and shall cause a copy of such application to be filed with, the Secretary of Defense, the Secretary of State (with respect to such applications involving service to foreign points), and the Governor of each State in which such line is proposed to be constructed, extended, ac- quired, or operated, or in which such discontinuance, reduction, or impairment of service is proposed, with the right to those notified to be heard; and the Commission may require such published no- tice as it shall determine.

(c) The Commission shall have power to issue such certificate as applied for, to refuse to issue it, or to issue it for a portion or portions of a line, or extension thereof, or discontinuance, reduc-

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44Sec. 214 COMMUNICATIONS ACT OF 1934

tion, or impairment of service, described in the application, or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require. After issuance of such certificate, and not before, the carrier may, without securing approval other than such certificate, comply with the terms and conditions contained in or attached to the issuance of such certificate and proceed with the construction, extension, ac- quisition, operation, or discontinuance, reduction, or impairment of service covered thereby. Any construction, extension, acquisition, operation, discontinuance, reduction, or impairment of service con- trary to the provisions of this section may be enjoined by any court of competent jurisdiction at the suit of the United States, the Com- mission, the State commission, any State affected, or any party in interest.

(d) The Commission may, after full opportunity for hearing, in a proceeding upon complaint or upon its own initiative without complaint, authorize or require by order any carrier, party to such proceeding, to provide itself with adequate facilities for the expedi- tious and efficient performance of its service as a common carrier and to extend its line or to establish a public office; but no such authorization or order shall be made unless the Commission finds, as to such provision of facilities, as to such establishment of public offices, or as to such extension, that it is reasonably required in the interest of public convenience and necessity, or as to such extension or facilities that the expense involved therein will not impair the ability of the carrier to perform its duty to the public. Any carrier which refuses or neglects to comply with any order of the Commis- sion made in pursuance of this paragraph shall forfeit to the United States $1,200 for each day during which such refusal or ne- glect continues.

(e) PROVISION OF UNIVERSAL SERVICE.— (1) ELIGIBLE TELECOMMUNICATIONS CARRIERS.—A common

carrier designated as an eligible telecommunications carrier under paragraph (2), (3), or (6) shall be eligible to receive uni- versal service support in accordance with section 254 and shall, throughout the service area for which the designation is re- ceived—

(A) offer the services that are supported by Federal universal service support mechanisms under section 254(c), either using its own facilities or a combination of its own facilities and resale of another carrier’s services (including the services offered by another eligible tele- communications carrier); and

(B) advertise the availability of such services and the charges therefor using media of general distribution. (2) DESIGNATION OF ELIGIBLE TELECOMMUNICATIONS CAR-

RIERS.—A State commission shall upon its own motion or upon request designate a common carrier that meets the require- ments of paragraph (1) as an eligible telecommunications car- rier for a service area designated by the State commission. Upon request and consistent with the public interest, conven- ience, and necessity, the State commission may, in the case of an area served by a rural telephone company, and shall, in the

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45 Sec. 214COMMUNICATIONS ACT OF 1934

case of all other areas, designate more than one common car- rier as an eligible telecommunications carrier for a service area designated by the State commission, so long as each additional requesting carrier meets the requirements of paragraph (1). Before designating an additional eligible telecommunications carrier for an area served by a rural telephone company, the State commission shall find that the designation is in the pub- lic interest.

(3) DESIGNATION OF ELIGIBLE TELECOMMUNICATIONS CAR- RIERS FOR UNSERVED AREAS.—If no common carrier will provide the services that are supported by Federal universal service support mechanisms under section 254(c) to an unserved com- munity or any portion thereof that requests such service, the Commission, with respect to interstate services or an area served by a common carrier to which paragraph (6) applies, or a State commission, with respect to intrastate services, shall determine which common carrier or carriers are best able to provide such service to the requesting unserved community or portion thereof and shall order such carrier or carriers to pro- vide such service for that unserved community or portion thereof. Any carrier or carriers ordered to provide such service under this paragraph shall meet the requirements of para- graph (1) and shall be designated as an eligible telecommuni- cations carrier for that community or portion thereof.

(4) RELINQUISHMENT OF UNIVERSAL SERVICE.—A State com- mission (or the Commission in the case of a common carrier designated under paragraph (6)) shall permit an eligible tele- communications carrier to relinquish its designation as such a carrier in any area served by more than one eligible tele- communications carrier. An eligible telecommunications carrier that seeks to relinquish its eligible telecommunications carrier designation for an area served by more than one eligible tele- communications carrier shall give advance notice to the State commission (or the Commission in the case of a common car- rier designated under paragraph (6)) of such relinquishment. Prior to permitting a telecommunications carrier designated as an eligible telecommunications carrier to cease providing uni- versal service in an area served by more than one eligible tele- communications carrier, the State commission (or the Commis- sion in the case of a common carrier designated under para- graph (6)) shall require the remaining eligible telecommuni- cations carrier or carriers to ensure that all customers served by the relinquishing carrier will continue to be served, and shall require sufficient notice to permit the purchase or con- struction of adequate facilities by any remaining eligible tele- communications carrier. The State commission (or the Commis- sion in the case of a common carrier designated under para- graph (6)) shall establish a time, not to exceed one year after the State commission (or the Commission in the case of a com- mon carrier designated under paragraph (6)) approves such re- linquishment under this paragraph, within which such pur- chase or construction shall be completed.

(5) SERVICE AREA DEFINED.—The term ‘‘service area’’ means a geographic area established by a State commission (or

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46Sec. 215 COMMUNICATIONS ACT OF 1934

the Commission under paragraph (6)) for the purpose of deter- mining universal service obligations and support mechanisms. In the case of an area served by a rural telephone company, ‘‘service area’’ means such company’s ‘‘study area’’ unless and until the Commission and the States, after taking into account recommendations of a Federal-State Joint Board instituted under section 410(c), establish a different definition of service area for such company.

(6) COMMON CARRIERS NOT SUBJECT TO STATE COMMISSION JURISDICTION.—In the case of a common carrier providing tele- phone exchange service and exchange access that is not subject to the jurisdiction of a State commission, the Commission shall upon request designate such a common carrier that meets the requirements of paragraph (1) as an eligible telecommuni- cations carrier for a service area designated by the Commission consistent with applicable Federal and State law. Upon request and consistent with the public interest, convenience and neces- sity, the Commission may, with respect to an area served by a rural telephone company, and shall, in the case of all other areas, designate more than one common carrier as an eligible telecommunications carrier for a service area designated under this paragraph, so long as each additional requesting carrier meets the requirements of paragraph (1). Before designating an additional eligible telecommunications carrier for an area served by a rural telephone company, the Commission shall find that the designation is in the public interest.

SEC. 215. ø47 U.S.C. 215¿ TRANSACTIONS RELATING TO SERVICES, EQUIPMENT, AND SO FORTH.

(a) The Commission shall examine into transactions entered into by any common carrier which relate to the furnishing of equip- ment, supplies, research, services, finances, credit, or personnel to such carrier and/or which may affect the changes made or to be made and/or the services rendered or to be rendered by such car- rier, in wire or radio communications subject to this Act, and shall report to the Congress whether any such transactions have affected or are likely to affect adversely the ability of the carrier to render adequate service to the public, or may result in any undue or un- reasonable increase in charges or in the maintenance of undue or unreasonable charges for such service; and in order to fully exam- ine into such transactions the Commission shall have access to and the right of inspection and examination of all accounts, records, and memoranda including all documents, papers, and correspond- ence now or hereafter existing, of persons furnishing such equip- ment, supplies, research, services, finances, credit, or personnel. The Commission shall include in its report its recommendations for necessary legislation in connection with such transactions, and shall report specifically whether in its opinion legislation should be enacted (1) authorizing the Commission to declare any such trans- actions void or to permit such transactions to be carried out subject to such modification of their terms and conditions as the Commis- sion shall deem desirable in the public interest; and/or (2) sub- jecting such transactions to the approval of the Commission where the person furnishing or seeking to furnish the equipment, sup- plies, research, service, finances, credit or personnel is a person di-

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47 Sec. 219COMMUNICATIONS ACT OF 1934

rectly or indirectly controlling or controlled by, or under direct or indirect common control with, such carrier; and/or (3) authorizing the Commission to require that all or any transactions of carriers involving the furnishing of equipment, supplies, research, services, finances, credit, or personnel to such carrier be upon competitive bids on such terms and conditions and subject to such regulations as it shall prescribe as necessary in the public interest.

(b) The Commission shall investigate the methods by which and the extent to which wire telephone companies are furnishing wire telegraph service and wire telegraph companies are furnishing wire telephone service, and shall report its findings to Congress to- gether with its recommendations as to whether additional legisla- tion on this subject is desirable.

(c) The Commission shall examine all contracts of common car- riers subject to this Act which prevent the other party thereto from dealing with another common carrier subject to this Act, and shall report its findings to Congress, together with its recommendations as to whether additional legislation on this subject is desirable. SEC. 216. ø47 U.S.C. 216¿ APPLICATION OF ACT TO RECEIVERS AND

TRUSTEES. The provisions of this Act shall apply to all receivers and oper-

ating trustees of carriers subject to this Act to the same extent that it applies to carriers. SEC. 217. ø47 U.S.C. 217¿ LIABILITY OF CARRIER FOR ACTS AND OMIS-

SIONS OF AGENTS. In construing and enforcing the provisions of this Act, the act,

omission, or failure of any officer, agent, or other person acting for or employed by any common carrier or user, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or user as well as that of the person. SEC. 218. ø47 U.S.C. 218¿ INQUIRIES INTO MANAGEMENT.

The Commission may inquire into the management of the busi- ness of all carriers subject to this Act, and shall keep itself in- formed as to the manner and method in which the same is con- ducted and as to technical developments and improvements in wire and radio communication and radio transmission of energy to the end that the benefits of new inventions and developments may be made available to the people of the United States. The Commission may obtain from such carriers and from persons directly or indi- rectly controlling or controlled by, or under direct or indirect com- mon control with, such carriers full and complete information nec- essary to enable the Commission to perform the duties and carry out the objects for which it was created. SEC. 219. ø47 U.S.C. 219¿ ANNUAL AND OTHER REPORTS.

(a) The Commission is authorized to require annual reports from all carriers subject to this Act, and from persons directly or indirectly controlling or controlled by, or under direct or indirect common control with, any such carrier, to prescribe the manner in which such reports shall be made, and to require from such persons specific answers to all questions upon which the Commission may need information. Except as otherwise required by the Commission, such annual reports shall show in detail the amount of capital

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48Sec. 220 COMMUNICATIONS ACT OF 1934

1 Public Law 97–35, 95 Stat. 357, 738–39, Aug. 13, 1981, provided as follows:

UNIFORM SYSTEM OF ACCOUNTS

SEC. 1253. (a)(1) The Federal Communications Commission (hereinafter in this section re- ferred to as the ‘‘Commission’’) shall complete the rulemaking proceeding relating to the revision of the uniform system of accounts used by telephone companies (Common Carrier Docket 78– 196; notice of proposed rulemaking adopted June 28, 1978, 43 Federal Register 33560) as soon as practicable after the date of the enactment of this Act.

(2) Such uniform system shall require that each common carrier shall maintain a system of accounting methods, procedures, and techniques (including accounts and supporting records and memoranda) which shall ensure a proper allocation of all costs to and among telecommuni- cations services, facilities, and products (and to and among classes of such services, facilities, and products) which are developed, manufactured, or offered by such common carrier.

(b) The Commission shall submit a report to each House of the Congress not later than one year after the date of the enactment of this Act. Such report shall include a summary of actions

stock issued, the amount and privileges of each class of stock, the amounts paid therefor, and the manner of payment for the same; the dividends paid and the surplus fund, if any; the number of stockholders (and the names of the thirty largest holders of each class of stock and the amount held by each); the funded and float- ing debts and the interest paid thereon; the cost and value of the carrier’s property, franchises, and equipment; the number of em- ployees and the salaries paid each class; the names of all officers and directors, and the amount of salary, bonus, and all other com- pensation paid to each; the amounts expended for improvements each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources; the operating and other expenses; the balances of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an annual balance sheet. Such reports shall also contain such information in relation to charges or regula- tions concerning charges, or agreements, arrangements, or con- tracts affecting the same, as the Commission may require.

(b) Such reports shall be for such twelve months’ period as the Commission shall designate and shall be filed with the Commission at its office in Washington within three months after the close of the year for which the report is made, unless additional time is granted in any case by the Commission; and if any person subject to the provisions of this section shall fail to make and file said an- nual reports within the time above specified, or within the time ex- tended by the Commission, for making and filing the same, or shall fail to make specific answer to any question authorized by the pro- visions of this section within thirty days from the time it is law- fully required so to do, such person shall forfeit to the United States the sum of $1,200 for each and every day it shall continue to be in default with respect thereto. The Commission may by gen- eral or special orders require any such carriers to file monthly re- ports of earnings and expenses and to file periodical and/or special reports concerning any matters with respect to which the Commis- sion is authorized or required by law to act. If any such carrier shall fail to make and file any such periodical or special report within the time fixed by the Commission, it shall be subject to the forefeitures above provided. SEC. 220. ø47 U.S.C. 220¿ ACCOUNTS, RECORDS, AND MEMORANDA; DE-

PRECIATION CHARGES 1. (a)(1) The Commission may, in its discretion, prescribe the

forms of any and all accounts, records, and memoranda to be kept

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49 Sec. 220COMMUNICATIONS ACT OF 1934

taken by the Commission in connection with the rulemaking proceeding specified in subsection (a), together with such other information as the Commission consider appropriate.

by carriers subject to this Act, including the accounts, records, and memoranda of the movement of traffic, as well as of the receipts and expenditures of moneys.

(2) The Commission shall, by rule, prescribe a uniform system of accounts for use by telephone companies. Such uniform system shall require that each common carrier shall maintain a system of accounting methods, procedures, and techniques (including ac- counts and supporting records and memoranda) which shall ensure a proper allocation of all costs to and among telecommunications services, facilities, and products (and to and among classes of such services, facilities, and products) which are developed, manufac- tured, or offered by such common carrier.

(b) The Commission may prescribe for such carriers as it deter- mines to be appropriate, the classes of property for which deprecia- tion charges may be properly included under operating expenses, and the percentages of depreciation which shall be charged with re- spect to each of such classes of property, classifying the carriers as it may deem proper for this purpose. The Commission may, when it deems necessary, modify the classes and percentages so pre- scribed. Such carriers shall not, after the Commission has pre- scribed the classes of property for which depreciation charges may be included, charge to operating expenses any depreciation charges on classes of property other than those prescribed by the Commis- sion, or, after the Commission has prescribed percentages of depre- ciation, charge with respect to any class of property a percentage of depreciation other than that prescribed therefor by the Commis- sion. No such carrier shall in any case include in any form under its operating or other expenses any depreciation or other charge or expenditure included elsewhere as a depreciation charge or other- wise under its operating or other expenses.

(c) The Commission shall at all times have access to and the right of inspection and examination of all accounts, records, and memoranda, including all documents, papers, and correspondence now or hereafter existing, and kept or required to be kept by such carriers, and the provisions of this section respecting the preserva- tion and destruction of books, papers, and documents shall apply thereto. The burden of proof to justify every accounting entry ques- tioned by the Commission shall be on the person making, author- izing, or requiring such entry and the Commission may suspend a charge or credit pending submission of proof by such person. Any provision of law prohibiting the disclosure of the contents of mes- sages or communications shall not be deemed to prohibit the disclo- sure of any matter in accordance with the provisions of this section. The Commission may obtain the services of any person licensed to provide public accounting services under the law of any State to as- sist with, or conduct, audits under this section. While so employed or engaged in conducting an audit for the Commission under this section, any such person shall have the powers granted the Com- mission under this subsection and shall be subject to subsection (f) in the same manner as if that person were an employee of the Commission.

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50Sec. 220 COMMUNICATIONS ACT OF 1934

(d) In case of failure or refusal on the part of any such carrier to keep such accounts, records, and memoranda on the books and in the manner prescribed by the Commission, or to submit such ac- counts, records, memoranda, documents, papers, and correspond- ence as are kept to the inspection of the Commission or any of its authorized agents, such carrier shall forfeit to the United States the sum of $6,000 for each day of the continuance of each such of- fense.

(e) Any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memoranda kept by any such carrier, or who shall willfully destroy, mutilate, alter, or by any other means or device falsify any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true, and correct entries in such accounts, records, or memo- randa of all facts and transactions appertaining to the business of the carrier, shall be deemed guilty of a misdemeanor, and shall be subject, upon conviction, to a fine of not less than $1,000 nor more than $5,000 or imprisonment for a term of not less than one year nor more than three years, or both such fine and imprisonment: Provided, That the Commission may in its descretion issue orders specifying such operating, accounting, or financial papers, records, books, blanks, or documents which may, after a reasonable time, be destroyed, and prescribing the length of time such books, papers, or documents shall be preserved.

(f) No member, officer, or employee of the Commission shall di- vulge any fact or information which may come to his knowledge during the course of examination of books or other accounts, as hereinbefore provided, except insofar as he may be directed by the Commission or by a court.

(g) After the Commission has prescribed the forms and manner of keeping of accounts, records, or memoranda to be kept by any person as herein provided, it shall be unlawful for such person to keep any other accounts, records, or memoranda than those so pre- scribed or such as may be approved by the Commission or to keep the accounts in any other manner than that prescribed or approved by the Commission. Notice of alterations by the Commission in the required manner or form of keeping accounts shall be given to such persons by the Commission at least six months before the same are to take effect.

(h) The Commission may classify carriers subject to this Act and prescribe different requirements under this section for dif- ferent classes of carriers, and may, if it deems such action con- sistent with the public interest, except the carriers of any par- ticular class or classes in any State from any of the requirements under this section in cases where such carriers are subject to State commission regulation with respect to matters to which this section relates.

(i) The Commission, before prescribing any requirements as to accounts, records, or memoranda, shall notify each State commis- sion having jurisdiction with respect to any carrier involved, and shall give reasonabale opportunity to each such commission to present its views, and shall receive and consider such views and recommendations.

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51 Sec. 222COMMUNICATIONS ACT OF 1934

(j) The Commission shall investigate and report to Congress as to the need for legislation to define further or harmonize the pow- ers of the Commission and of State commissions with respect to matters to which this section relates. SEC. 221. ø47 U.S.C. 221¿ SPECIAL PROVISIONS RELATING TO TELE-

PHONE COMPANIES. ø(a) Repealed by Public Law 104–104; 110 Stat. 143.¿ (b) Subject to the provisions of sections 225 and 301, nothing

in this Act shall be construced to apply, or to give the Commission jurisdiction, with respect to charges, classifications, practices, serv- ices, facilities, or regulations for or in connection with wire, mobile, or point-to-point radio telephone exchange service, or any combina- tion thereof even though a portion of such exchange service con- stitutes interstate or foreign communication, in any case where such matters are subject to regulation by a State commission or by local governmental authority.

(c) For the purpose of administering this Act as to carriers en- gaged in wire telephone communication, the Commission may clas- sify the property of any such carrier used for wire telephone com- munication, and determine what property of said carrier shall be considered as used in interstate or foreign telephone toll service. Such classification shall be made after hearing, upon notice to the carrier, the State commission (or the Governor, if the State has no State commission) of any State in which the property of said car- rier is located, and such other persons as the commission may pre- scribe.

(d) In making a valuation of the property of any wire telephone carrier the Commission, after making the classification authorized in this section, may in its discretion value only that part of the property of such carrier determined to be used in interstate or for- eign telephone toll service. SEC. 222. ø47 U.S.C. 222¿ PRIVACY OF CUSTOMER INFORMATION.

(a) IN GENERAL.—Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and re- lating to, other telecommunication carriers, equipment manufactur- ers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications car- rier.

(b) CONFIDENTIALITY OF CARRIER INFORMATION.—A tele- communications carrier that receives or obtains proprietary infor- mation from another carrier for purposes of providing any tele- communications service shall use such information only for such purpose, and shall not use such information for its own marketing efforts.

(1) PRIVACY REQUIREMENTS FOR TELECOMMUNICATIONS CARRIERS.—Except as required by law or with the approval of the customer, a telecommunications carrier that receives or ob- tains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, dis- close, or permit access to individually identifiable customer proprietary network information in its provision of (A) the tele-

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52Sec. 222 COMMUNICATIONS ACT OF 1934

communications service from which such information is de- rived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

(2) DISCLOSURE ON REQUEST BY CUSTOMERS.—A tele- communications carrier shall disclose customer proprietary network information, upon affirmative written request by the customer, to any person designated by the customer.

(3) AGGREGATE CUSTOMER INFORMATION.—A telecommuni- cations carrier that receives or obtains customer proprietary network information by virtue of its provision of a tele- communications service may use, disclose, or permit access to aggregate customer information other than for the purposes described in paragraph (1). A local exchange carrier may use, disclose, or permit access to aggregate customer information other than for purposes described in paragraph (1) only if it provides such aggregate information to other carriers or per- sons on reasonable and nondiscriminatory terms and condi- tions upon reasonable request therefor. (d) EXCEPTIONS.—Nothing in this section prohibits a tele-

communications carrier from using, disclosing, or permitting access to customer proprietary network information obtained from its cus- tomers, either directly or indirectly through its agents—

(1) to initiate, render, bill, and collect for telecommuni- cations services;

(2) to protect the rights or property of the carrier, or to protect users of those services and other carriers from fraudu- lent, abusive, or unlawful use of, or subscription to, such serv- ices;

(3) to provide any inbound telemarketing, referral, or ad- ministrative services to the customer for the duration of the call, if such call was initiated by the customer and the cus- tomer approves of the use of such information to provide such service; and

(4) to provide call location information concerning the user of a commercial mobile service (as such term is defined in sec- tion 332(d)) or the user of an IP-enabled voice service (as such term is defined in section 7 of the Wireless Communications and Public Safety Act of 1999 (47 U.S.C. 615b))—

(A) to a public safety answering point, emergency med- ical service provider or emergency dispatch provider, pub- lic safety, fire service, or law enforcement official, or hos- pital emergency or trauma care facility, in order to re- spond to the user’s call for emergency services;

(B) to inform the user’s legal guardian or members of the user’s immediate family of the user’s location in an emergency situation that involves the risk of death or seri- ous physical harm; or

(C) to providers of information or database manage- ment services solely for purposes of assisting in the deliv- ery of emergency services in response to an emergency.

(e) SUBSCRIBER LIST INFORMATION.—Notwithstanding sub- sections (b), (c), and (d), a telecommunications carrier that provides telephone exchange service shall provide subscriber list information

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53 Sec. 222COMMUNICATIONS ACT OF 1934

gathered in its capacity as a provider of such service on a timely and unbundled basis, under nondiscriminatory and reasonable rates, terms, and conditions, to any person upon request for the purpose of publishing directories in any format.

(f) AUTHORITY TO USE LOCATION INFORMATION.—For purposes of subsection (c)(1), without the express prior authorization of the customer, a customer shall not be considered to have approved the use or disclosure of or access to—

(1) call location information concerning the user of a com- mercial mobile service (as such term is defined in section 332(d)) or the user of an IP-enabled voice service (as such term is defined in section 7 of the Wireless Communications and Public Safety Act of 1999 (47 U.S.C. 615b)), other than in ac- cordance with subsection (d)(4); or

(2) automatic crash notification information to any person other than for use in the operation of an automatic crash noti- fication system. (g) SUBSCRIBER LISTED AND UNLISTED INFORMATION FOR EMER-

GENCY SERVICES.—Notwithstanding subsections (b), (c), and (d), a telecommunications carrier that provides telephone exchange serv- ice or a provider of IP-enabled voice service (as such term is de- fined in section 7 of the Wireless Communications and Public Safe- ty Act of 1999 (47 U.S.C. 615b)) shall provide information described in subsection (i)(3)(A) (including information pertaining to sub- scribers whose information is unlisted or unpublished) that is in its possession or control (including information pertaining to sub- scribers of other carriers) on a timely and unbundled basis, under nondiscriminatory and reasonable rates, terms, and conditions to providers of emergency services, and providers of emergency sup- port services, solely for purposes of delivering or assisting in the delivery of emergency services.

(h) DEFINITIONS.—As used in this section: (1) CUSTOMER PROPRIETARY NETWORK INFORMATION.—The

term ‘‘customer proprietary network information’’ means— (A) information that relates to the quantity, technical

configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by vir- tue of the carrier-customer relationship; and

(B) information contained in the bills pertaining to telephone exchange service or telephone toll service re- ceived by a customer of a carrier;

except that such term does not include subscriber list informa- tion.

(2) AGGREGATE INFORMATION.—The term ‘‘aggregate cus- tomer information’’ means collective data that relates to a group or category of services or customers, from which indi- vidual customer identities and characteristics have been re- moved.

(3) SUBSCRIBER LIST INFORMATION.—The term ‘‘subscriber list information’’ means any information—

(A) identifying the listed names of subscribers of a car- rier and such subscribers’ telephone numbers, addresses,

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54Sec. 223 COMMUNICATIONS ACT OF 1934

1 Section 223 was added by Public Law 90–299, approved May 3, 1968, 82 Stat. 112; amended by Public Law 98–214, 97 Stat. 1469, Dec. 8, 1983. Section 223 was amended twice in the 100th Congress: Public Law 100–297, 102 Stat. 424, April 28, 1988; Public Law 100–690, 102 Stat. 4181, Nov. 18, 1988. Printed is the section as amended by the latter amendment.

2 Section 1102(2)(B) of Public Law 113–4 provides for an amendment in subparagraph (C) by striking ‘‘harass any person at the called number or who receives the communication’’ and in-

or primary advertising classifications (as such classifica- tions are assigned at the time of the establishment of such service), or any combination of such listed names, num- bers, addresses, or classifications; and

(B) that the carrier or an affiliate has published, caused to be published, or accepted for publication in any directory format. (4) PUBLIC SAFETY ANSWERING POINT.—The term ‘‘public

safety answering point’’ means a facility that has been des- ignated to receive emergency calls and route them to emer- gency service personnel.

(5) EMERGENCY SERVICES.—The term ‘‘emergency services’’ means 9–1–1 emergency services and emergency notification services.

(6) EMERGENCY NOTIFICATION SERVICES.—The term ‘‘emer- gency notification services’’ means services that notify the pub- lic of an emergency.

(7) EMERGENCY SUPPORT SERVICES.—The term ‘‘emergency support services’’ means information or data base management services used in support of emergency services.

SEC. 223. 1 ø47 U.S.C. 223¿ OBSCENE OR HARASSING TELEPHONE CALLS IN THE DISTRICT OF COLUMBIA OR IN INTERSTATE OR FOREIGN COMMUNICATIONS.

(a) Whoever— (1) in interstate or foreign communications—

(A) by means of a telecommunications device know- ingly—

(i) makes, creates, or solicits, and (ii) initiates the transmission of,

any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornog- raphy, with intent to abuse, threaten, or harass another person;

(B) by means of a telecommunications device know- ingly—

(i) makes, creates, or solicits, and (ii) initiates the transmission of,

any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornog- raphy, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the com- munication;

(C) makes a telephone call or utilizes a telecommuni- cations device, whether or not conversation or communica- tion ensues, without disclosing his identity and with intent to abuse, threaten, or harass any person at the called number or who receives the communications 2;

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55 Sec. 223COMMUNICATIONS ACT OF 1934

serting ‘‘harass any specific person’’. The amendment could not be executed because the word ‘‘communication’’ at the end of the stricken matter should have been ‘‘communications’’.

(D) makes or causes the telephone of another repeat- edly or continuously to ring, with intent to harass any per- son at the called number; or

(E) makes repeated telephone calls or repeatedly initi- ates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any specific person; or (2) knowingly permits any telecommunications facility

under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,

shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

(b)(1) Whoever knowingly— (A) within the United States, by means of telephone,

makes (directly or by recording device) any obscene commu- nication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or

(B) permits any telephone facility under such person’s con- trol to be used for an activity prohibited by subparagraph (A),

shall be fined in accordance with title 18, United States Code, or imprisoned not more than two years, or both.

(2) Whoever knowingly— (A) within the United States, by means of telephone,

makes (directly or by recording device) any indecent commu- nication for commercial purposes which is available to any per- son under 18 years of age or to any other person without that person’s consent, regardless of whether the maker of such com- munication placed the call; or

(B) permits any telephone facility under such person’s con- trol to be used for an activity prohibited by subparagraph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both. (3) It is a defense to prosecution under paragraph (2) of this

subsection that the defendant restricted access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation.

(4) In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $50,000 for each viola- tion. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(5)(A) In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of viola- tion shall constitute a separate violation.

(B) A fine under this paragraph may be assessed either— (i) by a court, pursuant to civil action by the Commission

or any attorney employed by the Commission who is des- ignated by the Commission for such purposes, or

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56Sec. 223 COMMUNICATIONS ACT OF 1934

(ii) by the Commission after appropriate administrative proceedings. (6) The Attorney General may bring a suit in the appropriate

district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.

(c)(1) A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communica- tion specified in subsection (b) from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from sub- scribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such commuication.

(2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any com- mon carrier, or any of its affiliates, including their officers, direc- tors, employees, agents, or authorized representatives on account of—

(A) any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or

(B) any access permitted— (i) in good faith reliance upon the lack of any rep-

resentation by a provider of communciations that commu- nications provided by that provider are communications specified in subsection (b), or

(ii) because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b).

(3) Notwithstanding paragraph (2) of this subsection, a pro- vider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the question of whether the commu- nications which the provider seeks to provide fall within the cat- egory of communications to which the carrier will provide access only to subscribers who have previously requested such access.

(d) Whoever— (1) in interstate or foreign communications knowingly—

(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or

(B) uses any interactive computer service to display in a manner available to a person under 18 years of age,

any comment, request, suggestion, proposal, image, or other communication that is obscene or child pornography, regard- less of whether the user of such service placed the call or initi- ated the communication; or

(2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohib- ited by paragraph (1) with the intent that it be used for such activity,

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57 Sec. 223COMMUNICATIONS ACT OF 1934

shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

(e) In addition to any other defenses available by law: (1) No person shall be held to have violated subsection (a)

or (d) solely for providing access or connection to or from a fa- cility, system, or network not under that person’s control, in- cluding transmission, downloading, intermediate storage, ac- cess software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.

(2) The defenses provided by paragraph (1) of this sub- section shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing dis- tribution of communications that violate this section, or who knowingly advertises the availability of such communications.

(3) The defenses provided in paragraph (1) of this sub- section shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such per- son.

(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee’s or agent’s conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such con- duct, authorizes or ratifies such conduct, or (B) recklessly dis- regards such conduct.

(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person—

(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, in- cluding any method which is feasible under available tech- nology; or

(B) has restricted access to such communication by re- quiring use of a verified credit card, debit account, adult access code, or adult personal identification number. (6) The Commission may describe measures which are rea-

sonable, effective, and appropriate to restrict access to prohib- ited communications under subsection (d). Nothing in this sec- tion authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanc- tion, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.

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58Sec. 223 COMMUNICATIONS ACT OF 1934

(f)(1) No cause of action may be brought in any court or admin- istrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil pen- alty, and that the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.

(2) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit li- braries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) that is incon- sistent with the treatment of those activities or actions under this section: Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complemen- tary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and require- ments govern only intrastate services and do not result in the im- position of inconsistent rights, duties or obligations on the provi- sion of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section.

(g) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under subsection (a) or (d) shall be construed to af- fect or limit the application or enforcement of any other Federal law.

(h) For purposes of this section— (1) The use of the term ‘‘telecommunications device’’ in this

section— (A) shall not impose new obligations on broadcasting

station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this Act;

(B) does not include an interactive computer service; and

(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communica- tions that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)). (2) The term ‘‘interactive computer service’’ has the mean-

ing provided in section 230(f)(2). (3) The term ‘‘access software’’ means software (including

client or server software) or enabling tools that do not create or provide the content of the communication but that allow a user to do any one or more of the following:

(A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search,

subset, organize, reorganize, or translate content. (4) The term ‘‘institution of higher education’’ has the

meaning provided in section 101 of the Higher Education Act of 1965.

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59 Sec. 224COMMUNICATIONS ACT OF 1934

1 So in law. The Library Services and Construction Act (20 U.S.C. 355e et seq.) was repealed by section 708(a) of Public Law 104–208 (110 Stat. 3009–312).

2 Indentation so in original.

(5) The term ‘‘library’’ means a library eligible for partici- pation in State-based plans for funds under title III of the Li- brary Services and Construction Act (20 U.S.C. 355e et seq.) 1.

SEC. 224. ø47 U.S.C. 224¿ REGULATION OF POLE ATTACHMENTS. (a) As used in this section: (1) The term ‘‘utility’’ means any person who is a local ex-

change carrier or an electric, gas, water, steam, or other public util- ity, and who owns or controls poles, ducts, conduits, or rights-of- way used, in whole or in part, for any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State.

(2) The term ‘‘Federal Government’’ means the Government of the United States or any agency or instrumentality thereof.

(3) The term ‘‘State’’ means any State, territory, or possession of the United States, the District of Columbia, or any political sub- division, agency, or instrumentality thereof.

(4) The term ‘‘pole attachment’’ means any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a util- ity.

(5) 2 For purposes of this section, the term ‘‘telecommuni- cations carrier’’ (as defined in section 3 of this Act) does not in- clude any incumbent local exchange carrier as defined in sec- tion 251(h). (b)(1) Subject to the provisions of subsection (c) of this section,

the Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of enforcing any determina- tions resulting from complaint procedures established pursuant to this subsection, the Commission shall take such action as it deems appropriate and necessary, including issuing cease and desist or- ders, as authorized by section 312(b) of title III of the Communica- tions Act of 1934, as amended.

(2) The Commission shall prescribe by rule regulations to carry out the provisions of this section.

(c)(1) Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and rights-of- way as provided in subsection (f), for pole attachments in any case where such matters are regulated by a State.

(2) Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that—

(A) it regulates such rates, terms, and conditions; and (B) in so regulating such rates, terms, and conditions, the

State has the authority to consider and does consider the inter- ests of the subscribers of the services offered via such attach-

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60Sec. 224 COMMUNICATIONS ACT OF 1934

ments, as well as the interests of the consumers of the utility services. (3) For purposes of this subsection, a State shall not be consid-

ered to regulate the rates, terms, and conditions for pole attach- ments—

(A) unless the State has issued and made effective rules and regulations implementing the State’s regulatory authority over pole attachments; and

(B) with respect to any individual matter, unless the State takes final action on a complaint regarding such matter—

(i) within 180 days after the complaint is filed with the State, or

(ii) within the applicable period prescribed for such final action in such rules and regulations of the State, if the prescribed period does not extend beyond 360 days after the filing of such complaint.

(d)(1) For purposes of subsection (b) of this section, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit ca- pacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attrib- utable to the entire pole, duct, conduit, or right-of-way.

(2) As used in this subsection, the term ‘‘usable space’’ means the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment.

(3) This subsection shall apply to the rate for any pole attach- ment used by a cable television system solely to provide cable serv- ice. Until the effective date of the regulations required under sub- section (e), this subsection shall also apply to the rate for any pole attachment used by a cable system or any telecommunications car- rier (to the extent such carrier is not a party to a pole attachment agreement) to provide any telecommunications service.

(e)(1) The Commission shall, no later than 2 years after the date of enactment of the Telecommunications Act of 1996, prescribe regulations in accordance with this subsection to govern the charges for pole attachments used by telecommunications carriers to provide telecommunications services, when the parties fail to re- solve a dispute over such charges. Such regulations shall ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments.

(2) A utility shall apportion the cost of providing space on a pole, duct, conduit, or right-of-way other than the usable space among entities so that such apportionment equals two-thirds of the costs of providing space other than the usable space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities.

(3) A utility shall apportion the cost of providing usable space among all entities according to the percentage of usable space required for each entity.

(4) The regulations required under paragraph (1) shall become effective 5 years after the date of enactment of the Telecommuni- cations Act of 1996. Any increase in the rates for pole attachments

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61 Sec. 225COMMUNICATIONS ACT OF 1934

1 So in law. Probably should read ‘‘nondiscriminatory’’.

that result from the adoption of the regulations required by this subsection shall be phased in equal annual increments over a pe- riod of 5 years beginning on the effective date of such regulations.

(f)(1) A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it.

(2) Notwithstanding paragraph (1), a utility providing electric service may deny a cable television system or any telecommuni- cations carrier access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory 1 basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engi- neering purposes.

(g) A utility that engages in the provision of telecommuni- cations services or cable services shall impute to its costs of pro- viding such services (and charge any affiliate, subsidiary, or asso- ciate company engaged in the provision of such services) an equal amount to the pole attachment rate for which such company would be liable under this section.

(h) Whenever the owner of a pole, duct, conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or right-of-way, the owner shall provide written notification of such action to any entity that has obtained an attachment to such conduit or right-of- way so that such entity may have a reasonable opportunity to add to or modify its existing attachment. Any entity that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or right-of-way accessible.

(i) An entity that obtains an attachment to a pole, conduit, or right-of-way shall not be required to bear any of the costs of rear- ranging or replacing its attachment, if such rearrangement or re- placement is required as a result of an additional attachment or the modification of an existing attachment sought by any other en- tity (including the owner of such pole, duct, conduit, or right-of- way). SEC. 225. ø47 U.S.C. 225¿ TELECOMMUNICATIONS SERVICES FOR HEAR-

ING-IMPAIRED AND SPEECH-IMPAIRED INDIVIDUALS. (a) DEFINITIONS.—As used in this section—

(1) COMMON CARRIER OR CARRIER.—The term ‘‘common car- rier’’ or ‘‘carrier’’ includes any common carrier engaged in interstate communication by wire or radio as defined in section 3 and any common carrier engaged in intrastate communica- tion by wire or radio, notwithstanding sections 2(b) and 221(b).

(2) TDD.—The term ‘‘TDD’’ means a Telecommunications Device for the Deaf, which is a machine that employs graphic communication in the transmission of coded signals through a wire or radio communication system.

(3) TELECOMMUNICATIONS RELAY SERVICES.—The term ‘‘telecommunications relay services’’ means telephone trans- mission services that provide the ability for an individual who is deaf, hard of hearing, deaf-blind, or who has a speech dis- ability to engage in communication by wire or radio with one or more individuals, in a manner that is functionally equiva-

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62Sec. 225 COMMUNICATIONS ACT OF 1934

lent to the ability of a hearing individual who does not have a speech disability to communicate using voice communication services by wire or radio. (b) AVAILABILITY OF TELECOMMUNICATIONS RELAY SERVICES.—

(1) IN GENERAL.—In order to carry out the purposes estab- lished under section 1, to make available to all individuals in the United States a rapid, efficient nationwide communication service, and to increase the utility of the telephone system of the Nation, the Commission shall ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hear- ing-impaired and speech-impaired individuals in the United States.

(2) USE OF GENERAL AUTHORITY AND REMEDIES.—For the purposes of administering and enforcing the provisions of this section and the regulations prescribed thereunder, the Com- mission shall have the same authority, power, and functions with respect to common carriers engaged in intrastate commu- nication as the Commission has in administering and enforcing the provisions of this title with respect to any common carrier engaged in interstate communication. Any violation of this sec- tion by any common carrier engaged in intrastate communica- tion shall be subject to the same remedies, penalties, and pro- cedures as are applicable to a violation of this Act by a com- mon carrier engaged in interstate communication. (c) PROVISION OF SERVICES.—Each common carrier providing

telephone voice transmission services shall, not later than 3 years after the date of enactment of this section, provide in compliance with the regulations prescribed under this section, throughout the area in which it offers service, telecommunications relay services, individually, through designees, through a competitively selected vendor, or in concert with other carriers. A common carrier shall be considered to be in compliance with such regulations—

(1) with respect to intrastate telecommunications relay services in any State that does not have a certified program under subsection (f) and with respect to interstate tele- communications relay services, if such common carrier (or other entity through which the carrier is providing such relay services) is in compliance with the Commission’s regulations under subsection (d); or

(2) with respect to intrastate telecommunications relay services in any State that has a certified program under sub- section (f) for such State, if such common carrier (or other enti- ty through which the carrier is providing such relay services) is in compliance with the program certified under subsection (f) for such State. (d) REGULATIONS.—

(1) IN GENERAL.—The Commission shall, not later than 1 year after the date of enactment of this section, prescribe regu- lations to implement this section, including regulations that—

(A) establish functional requirements, guidelines, and operations procedures for telecommunications relay serv- ices;

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63 Sec. 225COMMUNICATIONS ACT OF 1934

(B) establish minimum standards that shall be met in carrying out subsection (c);

(D) require that users of telecommunications relay services pay rates no greater than the rates paid for func- tionally equivalent voice communication services with re- spect to such factors as the duration of the call, the time of day, and the distance from point of origination to point of termination;

(E) prohibit relay operators from failing to fulfill the obligations of common carriers by refusing calls or limiting the length of calls that use telecommunications relay serv- ices;

(F) prohibit relay operators from disclosing the content of any relayed conversation and from keeping records of the content of any such conversation beyond the duration of the call; and

(G) prohibit relay operators from intentionally altering a relayed conversation. (2) TECHNOLOGY.—The Commission shall ensure that regu-

lations prescribed to implement this section encourage, con- sistent with section 7(a) of this Act, the use of existing tech- nology and do not discourage or impair the development of im- proved technology.

(3) JURISDICTIONAL SEPARATION OF COSTS.— (A) IN GENERAL.—Consistent with the provisions of

section 410 of this Act, the Commission shall prescribe reg- ulations governing the jurisdictional separation of costs for the services provided pursuant to this section.

(B) RECOVERING COSTS.—Such regulations shall gen- erally provide that costs caused by interstate telecommuni- cations relay services shall be recovered from all sub- scribers for every interstate service and costs caused by intrastate telecommunications relay services shall be re- covered from the intrastate jurisdiction. In a State that has a certified program under subsection (f), a State com- mission shall permit a common carrier to recover the costs incurred in providing intrastate telecommunications relay services by a method consistent with the requirements of this section.

(e) ENFORCEMENT.— (1) IN GENERAL.—Subject to subsections (f) and (g), the

Commission shall enforce this section. (2) COMPLAINT.—The Commission shall resolve, by final

order, a complaint alleging a violation of this section within 180 days after the date such complaint is filed. (f) CERTIFICATION.—

(1) STATE DOCUMENTATION.—Any State desiring to estab- lish a State program under this section shall submit docu- mentation to the Commission that describes the program of such State for implementing intrastate telecommunications relay services and the procedures and remedies available for enforcing any requirements imposed by the State program.

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(2) REQUIREMENTS FOR CERTIFICATION.—After review of such documentation, the Commission shall certify the State program if the Commission determines that—

(A) the program makes available to hearing-impaired and speech-impaired individuals, either directly, through designees, through a competitively selected vendor, or through regulation of intrastate common carriers, intra- state telecommunications relay services in such State in a manner that meets or exceeds the requirements of regula- tions prescribed by the Commission under subsection (d); and

(B) the program makes available adequate procedures and remedies for enforcing the requirements of the State program. (3) METHOD OF FUNDING.—Except as provided in sub-

section (d), the Commission shall not refuse to certify a State program based solely on the method such State will implement for funding intrastate telecommunication relay services.

(4) SUSPENSION OR REVOCATION OF CERTIFICATION.—The Commission may suspend or revoke such certification if, after notice and opportunity for hearing, the Commission determines that such certification is no longer warranted. In a State whose program has been suspended or revoked, the Commission shall take such steps as may be necessary, consistent with this sec- tion, to ensure continuity of telecommunications relay services. (g) COMPLAINT.—

(1) REFERRAL OF COMPLAINT.—If a complaint to the Com- mission alleges a violation of this section with respect to intra- state telecommunications relay services within a State and cer- tification of the program of such State under subsection (f) is in effect, the Commission shall refer such complaint to such State.

(2) JURISDICTION OF COMMISSION.—After referring a com- plaint to a State under paragraph (1), the Commission shall exercise jurisdiction over such complaint only if—

(A) final action under such State program has not been taken on such complaint by such State—

(i) within 180 days after the complaint is filed with such State; or

(ii) within a shorter period as prescribed by the regulations of such State; or (B) the Commission determines that such State pro-

gram is no longer qualified for certification under sub- section (f).

SEC. 226. ø47 U.S.C. 226¿ TELEPHONE OPERATOR SERVICES. (a) DEFINITIONS.—As used in this section—

(1) The term ‘‘access code’’ means a sequence of numbers that, when dialed, connect the caller to the provider of operator services associated with that sequence.

(2) The term ‘‘aggregator’’ means any person that, in the ordinary course of its operations, makes telephones available to the public or to transient users of its premises, for interstate telephone calls using a provider of operator services.

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(3) The term ‘‘call splashing’’ means the transfer of a tele- phone call from one provider of operator services to another such provider in such a manner that the subsequent provider is unable or unwilling to determine the location of the origina- tion of the call and, because of such inability or unwillingness, is prevented from billing the call on the basis of such location.

(4) The term ‘‘consumer’’ means a person initiating any interstate telephone call using operator services.

(5) The term ‘‘equal access’’ has the meaning given that term in Appendix B of the Modification of Final Judgment en- tered August 24, 1982, in United States v. Western Electric, Civil Action No. 82–0192 (United States District Court, District of Columbia), as amended by the Court in its orders issued prior to the enactment of this section.

(6) The term ‘‘equal access code’’ means an access code that allows the public to obtain an equal access connection to the carrier associated with that code.

(7) The term ‘‘operator services’’ means any interstate tele- communications service initiated from an aggregator location that includes, as a component, any automatic or live assistance to a consumer to arrange for billing or completion, or both, of an interstate telephone call through a method other than—

(A) automatic completion with billing to the telephone from which the call originated; or

(B) completion through an access code used by the con- sumer, with billing to an account previously established with the carrier by the consumer. (8) The term ‘‘presubscribed provider of operator services’’

means the interstate provider of operator services to which the consumer is connected when the consumer places a call using a provider of operator services without dialing an access code.

(9) The term ‘‘provider of operator services’’ means any common carrier that provides operator services or any other person determined by the Commission to be providing operator services. (b) REQUIREMENTS FOR PROVIDERS OF OPERATOR SERVICES.—

(1) IN GENERAL.—Beginning not later than 90 days after the date of enactment of this section, each provider of operator services shall, at a minimum—

(A) identify itself, audibly and distinctly, to the con- sumer at the beginning of each telephone call and before the consumer incurs any charge for the call;

(B) permit the consumer to terminate the telephone call at no charge before the call is connected;

(i) a quote of its rates or charges for the call; (ii) the methods by which such rates or charges

will be collected; and (iii) the methods by which complaints concerning

such rates, charges, or collection practices will be re- solved; (D) ensure, by contract or tariff, that each aggregator

for which such provider is the presubscribed provider of

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operator services is in compliance with the requirements of subsection (c) and, if applicable, subsection (e)(1);

(E) withhold payment (on a location-by-location basis) of any compensation, including commissions, to aggregators if such provider reasonably believes that the aggregator (i) is blocking access by means of ‘‘950’’ or ‘‘800’’ numbers to interstate common carriers in violation of sub- section (c)(1)(B) or (ii) is blocking access to equal access codes in violation of rules the Commission may prescribe under subsection (e)(1);

(F) not bill for unanswered telephone calls in areas where equal access is available;

(G) not knowingly bill for unanswered telephone calls where equal access is not available;

(H) not engage in call splashing, unless the consumer requests to be transferred to another provider of operator services, the consumer is informed prior to incurring any charges that the rates for the call may not reflect the rates from the actual originating location of the call, and the consumer then consents to be transferred; and

(I) except as provided in subparagraph (H), not bill for a call that does not reflect the location of the origination of the call. (2) ADDITIONAL REQUIREMENTS FOR FIRST 3 YEARS.—In ad-

dition to meeting the requirements of paragraph (1), during the 3-year period beginning on the date that is 90 days after the date of enactment of this section, each presubscribed provider of operator services shall identify itself audibly and distinctly to the consumer, not only as required in paragraph (1)(A), but also for a second time before connecting the call and before the consumer incurs any charge. (c) REQUIREMENTS FOR AGGREGATORS.—

(1) IN GENERAL.—Each aggregator, beginning not later than 90 days after the date of enactment of this section, shall—

(A) post on or near the telephone instrument, in plain view of consumers—

(i) the name, address, and toll-free telephone num- ber of the provider of operator services;

(ii) a written disclosure that the rates for all oper- ator-assisted calls are available on request, and that consumers have a right to obtain access to the inter- state common carrier of their choice and may contact their preferred interstate common carriers for infor- mation on accessing that carrier’s service using that telephone; and

(iii) the name and address of the enforcement divi- sion of the Common Carrier Bureau of the Commis- sion, to which the consumer may direct complaints re- garding operator services; (B) ensure that each of its telephones presubscribed to

a provider of operator services allows the consumer to use ‘‘800’’ and ‘‘950’’ access code numbers to obtain access to

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67 Sec. 226COMMUNICATIONS ACT OF 1934

the provider of operator services desired by the consumer; and

(C) ensure that no charge by the aggregator to the consumer for using an ‘‘800’’ or ‘‘950’’ access code number, or any other access code number, is greater than the amount the aggregator charges for calls placed using the presubscribed provider of operator services. (2) EFFECT OF STATE LAW OR REGULATION.—The require-

ments of paragraph (1)(A) shall not apply to an aggregator in any case in which State law or State regulation requires the aggregator to take actions that are substantially the same as those required in paragraph (1)(A). (d) GENERAL RULEMAKING REQUIRED.—

(1) RULEMAKING PROCEEDING.—The Commission shall con- duct a rulemaking proceeding pursuant to this title to pre- scribe regulations to—

(A) protect consumers from unfair and deceptive prac- tices relating to their use of operator services to place interstate telephone calls; and

(B) ensure that consumers have the opportunity to make informed choices in making such calls. (2) CONTENTS OF REGULATIONS.—The regulations pre-

scribed under this section shall— (A) contain provisions to implement each of the re-

quirements of this section, other than the requirements es- tablished by the rulemaking under subsection (e) on access and compensation; and

(B) contain such other provisions as the Commission determines necessary to carry out this section and the pur- poses and policies of this section. (3) ADDITIONAL REQUIREMENTS TO BE IMPLEMENTED BY

REGULATIONS.—The regulations prescribed under this section shall, at a minimum—

(A) establish minimum standards for providers of op- erator services and aggregators to use in the routing and handling of emergency telephone calls; and

(B) establish a policy for requiring providers of oper- ator services to make public information about recent changes in operator services and choices available to con- sumers in that market.

(e) SEPARATE RULEMAKING ON ACCESS AND COMPENSATION.— (1) ACCESS.—The Commission, shall require—

(A) that each aggregator ensure within a reasonable time that each of its telephones presubscribed to a pro- vider of operator services allows the consumer to obtain ac- cess to the provider of operator services desired by the con- sumer through the use of an equal access code; or

(B) that all providers of operator services, within a reasonable time, make available to their customers a ‘‘950’’ or ‘‘800’’ access code number for use in making operator services calls from anywhere in the United States; or

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(2) COMPENSATION.—The Commission shall consider the need to prescribe compensation (other than advance payment by consumers) for owners of competitive public pay telephones for calls routed to providers of operator services that are other than the presubscribed provider of operator services for such telephones. Within 9 months after the date of enactment of this section, the Commission shall reach a final decision on whether to prescribe such compensation. (f) TECHNOLOGICAL CAPABILITY OF EQUIPMENT.—Any equip-

ment and software manufactured or imported more than 18 months after the date of enactment of this section and installed by any aggregator shall be technologically capable of providing consumers with access to interstate providers of operator services through the use of equal access codes.

(g) FRAUD.—In any proceeding to carry out the provisions of this section, the Commission shall require such actions or meas- ures as are necessary to ensure that aggregators are not exposed to undue risk of fraud.

(h) DETERMINATIONS OF RATE COMPLIANCE.— (1) FILING OF INFORMATIONAL TARIFF.—

(A) IN GENERAL.—Each provider of operator services shall file, within 90 days after the date of enactment of this section, and shall maintain, update regularly, and keep open for public inspection, an informational tariff specifying rates, terms, and conditions, and including com- missions, surcharges, any fees which are collected from consumers, and reasonable estimates of the amount of traffic priced at each rate, with respect to calls for which operator services are provided. Any changes in such rates, terms, or conditions shall be filed no later than the first day on which the changed rates, terms, or conditions are in effect.

(B) WAIVER AUTHORITY.—The Commission may, after 4 years following the date of enactment of this section, waive the requirements of this paragraph only if—

(i) the findings and conclusions of the Commission in the final report issued under paragraph (3)(B)(iii) state that the regulatory objectives specified in sub- section (d)(1) (A) and (B) have been achieved; and

(ii) the Commission determines that such waiver will not adversely affect the continued achievement of such regulatory objectives.

(2) REVIEW OF INFORMATIONAL TARIFFS.—If the rates and charges filed by any provider of operator services under para- graph (1) appear upon review by the Commission to be unjust or unreasonable, the Commission may require such provider of operator services to do either or both of the following:

(A) demonstrate that its rates and charges are just and reasonable, and

(B) announce that its rates are available on request at the beginning of each call. (3) PROCEEDING REQUIRED.—

(A) IN GENERAL.—Within 60 days after the date of en- actment of this section, the Commission shall initiate a

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proceeding to determine whether the regulatory objectives specified in subsection (d)(1) (A) and (B) are being achieved. The proceeding shall—

(i) monitor operator service rates; (ii) determine the extent to which offerings made

by providers of operator services are improvements, in terms of service quality, price, innovation, and other factors, over those available before the entry of new providers of operator services into the market;

(iii) report on (in the aggregate and by individual provider) operator service rates, incidence of service complaints, and service offerings;

(iv) consider the effect that commissions and sur- charges, billing and validation costs, and other costs of doing business have on the overall rates charged to consumers; and

(v) monitor compliance with the provisions of this section, including the periodic placement of telephone calls from aggregator locations. (B) REPORTS.—(i) The Commission shall, during the

pendency of such proceeding and not later than 5 months after its commencement, provide the Congress with an in- terim report on the Commission’s activities and progress to date.

(ii) Not later than 11 months after the commencement of such proceeding, the Commission shall report to the Congress on its interim findings as a result of the pro- ceeding.

(iii) Not later than 23 months after the commencement of such proceeding, the Commission shall submit a final report to the Congress on its findings and conclusions. (4) IMPLEMENTING REGULATIONS.—

(A) IN GENERAL.—Unless the Commission makes the determination described in subparagraph (B), the Commis- sion shall, within 180 days after submission of the report required under paragraph (3)(B)(iii), complete a rule- making proceeding pursuant to this title to establish regu- lations for implementing the requirements of this title (and paragraphs (1) and (2) of this subsection) that rates and charges for operator services be just and reasonable. Such regulations shall include limitations on the amount of commissions or any other compensation given to aggregators by providers of operator service.

(B) LIMITATION.—The requirement of subparagraph (A) shall not apply if, on the basis of the proceeding under paragraph (3)(A), the Commission makes (and includes in the report required by paragraph (3)(B)(iii)) a factual determination that market forces are securing rates and charges that are just and reasonable, as evidenced by rate levels, costs, complaints, service quality, and other rel- evant factors.

(i) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to alter the obligations, powers, or duties of common car- riers or the Commission under the other sections of this Act.

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SEC. 227. ø47 U.S.C. 227¿ RESTRICTIONS ON THE USE OF TELEPHONE EQUIPMENT.

(a) DEFINITIONS.—As used in this section— (1) The term ‘‘automatic telephone dialing system’’ means

equipment which has the capacity— (A) to store or produce telephone numbers to be called,

using a random or sequential number generator; and (B) to dial such numbers.

(2) The term ‘‘established business relationship’’, for pur- poses only of subsection (b)(1)(C)(i), shall have the meaning given the term in section 64.1200 of title 47, Code of Federal Regulations, as in effect on January 1, 2003, except that—

(A) such term shall include a relationship between a person or entity and a business subscriber subject to the same terms applicable under such section to a relationship between a person or entity and a residential subscriber; and

(B) an established business relationship shall be sub- ject to any time limitation established pursuant to para- graph (2)(G)). (3) The term ‘‘telephone facsimile machine’’ means equip-

ment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.

(4) The term ‘‘telephone solicitation’’ means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any per- son with whom the caller has an established business relation- ship, or (C) by a tax exempt nonprofit organization.

(5) The term ‘‘unsolicited advertisement’’ means any mate- rial advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise. (b) RESTRICTIONS ON THE USE OF AUTOMATED TELEPHONE

EQUIPMENT.— (1) PROHIBITIONS.—It shall be unlawful for any person

within the United States, or any person outside the United States, or any person outside the United States if the recipient is within the United States if the recipient is within the United States—

(A) to make any call (other than a call made for emer- gency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—

(i) to any emergency telephone line (including any ‘‘911’’ line and any emergency line of a hospital, med- ical physician or service office, health care facility, poi-

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son control center, or fire protection or law enforce- ment agency);

(ii) to the telephone line of any guest room or pa- tient room of a hospital, health care facility, elderly home, or similar establishment; or

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call; (B) to initiate any telephone call to any residential

telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency pur- poses or is exempted by rule or order by the Commission under paragraph (2)(B);

(C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless—

(i) the unsolicited advertisement is from a sender with an established business relationship with the re- cipient;

(ii) the sender obtained the number of the tele- phone facsimile machine through—

(I) the voluntary communication of such num- ber, within the context of such established busi- ness relationship, from the recipient of the unso- licited advertisement, or

(II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution,

except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before the date of enactment of the Junk Fax Prevention Act of 2005 if the sender pos- sessed the facsimile machine number of the recipient before such date of enactment; and

(iii) the unsolicited advertisement contains a no- tice meeting the requirements under paragraph (2)(D),

except that the exception under clauses (i) and (ii) shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a sender to whom a request has been made not to send future unsolicited ad- vertisements to such telephone facsimile machine that complies with the requirements under paragraph (2)(E); or

(D) to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi- line business are engaged simultaneously. (2) REGULATIONS; EXEMPTIONS AND OTHER PROVISIONS.—

The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the require- ments of this subsection, the Commission—

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(A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or prerecorded voice to which they have not given their prior express consent;

(B) may, by rule or order, exempt from the require- ments of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe—

(i) calls that are not made for a commercial pur- pose; and

(ii) such classes or categories of calls made for commercial purposes as the Commission determines—

(I) will not adversely affect the privacy rights that this section is intended to protect; and

(II) do not include the transmission of any un- solicited advertisement;

(C) may, by rule or order, exempt from the require- ments of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect;

(D) shall provide that a notice contained in an unsolic- ited advertisement complies with the requirements under this subparagraph only if—

(i) the notice is clear and conspicuous and on the first page of the unsolicited advertisement;

(ii) the notice states that the recipient may make a request to the sender of the unsolicited advertise- ment not to send any future unsolicited advertise- ments to a telephone facsimile machine or machines and that failure to comply, within the shortest reason- able time, as determined by the Commission, with such a request meeting the requirements under sub- paragraph (E) is unlawful;

(iii) the notice sets forth the requirements for a re- quest under subparagraph (E);

(iv) the notice includes— (I) a domestic contact telephone and facsimile

machine number for the recipient to transmit such a request to the sender; and

(II) a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement; the Com- mission shall by rule require the sender to provide such a mechanism and may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, exempt certain classes of small business senders, but only if the Commission determines that the costs to such class are unduly burdensome given the revenues generated by such small businesses; (v) the telephone and facsimile machine numbers

and the cost-free mechanism set forth pursuant to

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clause (iv) permit an individual or business to make such a request at any time on any day of the week; and

(vi) the notice complies with the requirements of subsection (d); (E) shall provide, by rule, that a request not to send

future unsolicited advertisements to a telephone facsimile machine complies with the requirements under this sub- paragraph only if—

(i) the request identifies the telephone number or numbers of the telephone facsimile machine or ma- chines to which the request relates;

(ii) the request is made to the telephone or fac- simile number of the sender of such an unsolicited ad- vertisement provided pursuant to subparagraph (D)(iv) or by any other method of communication as deter- mined by the Commission; and

(iii) the person making the request has not, subse- quent to such request, provided express invitation or permission to the sender, in writing or otherwise, to send such advertisements to such person at such tele- phone facsimile machine; (F) may, in the discretion of the Commission and sub-

ject to such conditions as the Commission may prescribe, allow professional or trade associations that are tax-ex- empt nonprofit organizations to send unsolicited advertise- ments to their members in furtherance of the association’s tax-exempt purpose that do not contain the notice required by paragraph (1)(C)(iii), except that the Commission may take action under this subparagraph only—

(i) by regulation issued after public notice and op- portunity for public comment; and

(ii) if the Commission determines that such notice required by paragraph (1)(C)(iii) is not necessary to protect the ability of the members of such associations to stop such associations from sending any future un- solicited advertisements; and (G)(i) may, consistent with clause (ii), limit the dura-

tion of the existence of an established business relation- ship, however, before establishing any such limits, the Commission shall—

(I) determine whether the existence of the excep- tion under paragraph (1)(C) relating to an established business relationship has resulted in a significant number of complaints to the Commission regarding the sending of unsolicited advertisements to telephone facsimile machines;

(II) determine whether a significant number of any such complaints involve unsolicited advertise- ments that were sent on the basis of an established business relationship that was longer in duration than the Commission believes is consistent with the reason- able expectations of consumers;

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(III) evaluate the costs to senders of dem- onstrating the existence of an established business re- lationship within a specified period of time and the benefits to recipients of establishing a limitation on such established business relationship; and

(IV) determine whether with respect to small busi- nesses, the costs would not be unduly burdensome; and (ii) may not commence a proceeding to determine

whether to limit the duration of the existence of an estab- lished business relationship before the expiration of the 3- month period that begins on the date of the enactment of the Junk Fax Prevention Act of 2005. (3) PRIVATE RIGHT OF ACTION.—A person or entity may, if

otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—

(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or

(C) both such actions. If the court finds that the defendant willfully or knowingly vio- lated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. (c) PROTECTION OF SUBSCRIBER PRIVACY RIGHTS.—

(1) RULEMAKING PROCEEDING REQUIRED.—Within 120 days after the date of enactment of this section, the Commission shall initiate a rulemaking proceeding concerning the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. The proceeding shall—

(A) compare and evaluate alternative methods and procedures (including the use of electronic databases, tele- phone network technologies, special directory markings, industry-based or company-specific ‘‘do not call’’ systems, and any other alternatives, individually or in combination) for their effectiveness in protecting such privacy rights, and in terms of their cost and other advantages and dis- advantages;

(B) evaluate the categories of public and private enti- ties that would have the capacity to establish and admin- ister such methods and procedures;

(C) consider whether different methods and procedures may apply for local telephone solicitations, such as local telephone solicitations of small businesses or holders of second class mail permits;

(D) consider whether there is a need for additional Commission authority to further restrict telephone solicita- tions, including those calls exempted under subsection

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(a)(3) of this section, and, if such a finding is made and supported by the record, propose specific restrictions to the Congress; and

(E) develop proposed regulations to implement the methods and procedures that the Commission determines are most effective and efficient to accomplish the purposes of this section. (2) REGULATIONS.—Not later than 9 months after the date

of enactment of this section, the Commission shall conclude the rulemaking proceeding initiated under paragraph (1) and shall prescribe regulations to implement methods and procedures for protecting the privacy rights described in such paragraph in an efficient, effective, and economic manner and without the impo- sition of any additional charge to telephone subscribers.

(3) USE OF DATABASE PERMITTED.—The regulations re- quired by paragraph (2) may require the establishment and op- eration of a single national database to compile a list of tele- phone numbers of residential subscribers who object to receiv- ing telephone solicitations, and to make that compiled list and parts thereof available for purchase. If the Commission deter- mines to require such a database, such regulations shall—

(A) specify a method by which the Commission will se- lect an entity to administer such database;

(B) require each common carrier providing telephone exchange service, in accordance with regulations pre- scribed by the Commission, to inform subscribers for tele- phone exchange service of the opportunity to provide noti- fication, in accordance with regulations established under this paragraph, that such subscriber objects to receiving telephone solicitations;

(C) specify the methods by which each telephone sub- scriber shall be informed, by the common carrier that pro- vides local exchange service to that subscriber, of (i) the subscriber’s right to give or revoke a notification of an ob- jection under subparagraph (A), and (ii) the methods by which such right may be exercised by the subscriber;

(D) specify the methods by which such objections shall be collected and added to the database;

(E) prohibit any residential subscriber from being charged for giving or revoking such notification or for being included in a database compiled under this section;

(F) prohibit any person from making or transmitting a telephone solicitation to the telephone number of any subscriber included in such database;

(G) specify (i) the methods by which any person desir- ing to make or transmit telephone solicitations will obtain access to the database, by area code or local exchange pre- fix, as required to avoid calling the telephone numbers of subscribers included in such database; and (ii) the costs to be recovered from such persons;

(H) specify the methods for recovering, from persons accessing such database, the costs involved in identifying, collecting, updating, disseminating, and selling, and other

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activities relating to, the operations of the database that are incurred by the entities carrying out those activities;

(I) specify the frequency with which such database will be updated and specify the method by which such updat- ing will take effect for purposes of compliance with the regulations prescribed under this subsection;

(J) be designed to enable States to use the database mechanism selected by the Commission for purposes of ad- ministering or enforcing State law;

(K) prohibit the use of such database for any purpose other than compliance with the requirements of this sec- tion and any such State law and specify methods for pro- tection of the privacy rights of persons whose numbers are included in such database; and

(L) require each common carrier providing services to any person for the purpose of making telephone solicita- tions to notify such person of the requirements of this sec- tion and the regulations thereunder. (4) CONSIDERATIONS REQUIRED FOR USE OF DATABASE

METHOD.—If the Commission determines to require the data- base mechanism described in paragraph (3), the Commission shall—

(A) in developing procedures for gaining access to the database, consider the different needs of telemarketers conducting business on a national, regional, State, or local level;

(B) develop a fee schedule or price structure for re- couping the cost of such database that recognizes such differences and—

(i) reflect the relative costs of providing a national, regional, State, or local list of phone numbers of sub- scribers who object to receiving telephone solicitations;

(ii) reflect the relative costs of providing such lists on paper or electronic media; and

(iii) not place an unreasonable financial burden on small businesses; and (C) consider (i) whether the needs of telemarketers op-

erating on a local basis could be met through special mark- ings of area white pages directories, and (ii) if such direc- tories are needed as an adjunct to database lists prepared by area code and local exchange prefix. (5) PRIVATE RIGHT OF ACTION.—A person who has received

more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State—

(A) an action based on a violation of the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater, or

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It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and imple- mented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection. If the court finds that the defendant willfully or knowingly violated the regula- tions prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

(6) RELATION TO SUBSECTION (b).—The provisions of this subsection shall not be construed to permit a communication prohibited by subsection (b). (d) TECHNICAL AND PROCEDURAL STANDARDS.—

(1) PROHIBITION.—It shall be unlawful for any person with- in the United States—

(A) to initiate any communication using a telephone facsimile machine, or to make any telephone call using any automatic telephone dialing system, that does not comply with the technical and procedural standards prescribed under this subsection, or to use any telephone facsimile machine or automatic telephone dialing system in a man- ner that does not comply with such standards; or

(B) to use a computer or other electronic device to send any message via a telephone facsimile machine un- less such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or indi- vidual sending the message and the telephone number of the sending machine or of such business, other entity, or individual. (2) TELEPHONE FACSIMILE MACHINES.—The Commission

shall revise the regulations setting technical and procedural standards for telephone facsimile machines to require that any such machine which is manufactured after one year after the date of enactment of this section clearly marks, in a margin at the top or bottom of each transmitted page or on the first page of each transmission, the date and time sent, an identification of the business, other entity, or individual sending the mes- sage, and the telephone number of the sending machine or of such business, other entity, or individual.

(3) ARTIFICIAL OR PRERECORDED VOICE SYSTEMS.—The Commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone. Such standards shall require that—

(A) all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initi- ating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such busi- ness, other entity, or individual; and

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(B) any such system will automatically release the called party’s line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party’s line to be used to make or receive other calls.

(e) PROHIBITION ON PROVISION OF INACCURATE CALLER IDENTI- FICATION INFORMATION.—

(1) IN GENERAL.—It shall be unlawful for any person with- in the United States, in connection with any telecommuni- cations service or IP-enabled voice service, to cause any caller identification service to knowingly transmit misleading or inac- curate caller identification information with the intent to de- fraud, cause harm, or wrongfully obtain anything of value, un- less such transmission is exempted pursuant to paragraph (3)(B).

(2) PROTECTION FOR BLOCKING CALLER IDENTIFICATION IN- FORMATION.—Nothing in this subsection may be construed to prevent or restrict any person from blocking the capability of any caller identification service to transmit caller identification information.

(3) REGULATIONS.— (A) IN GENERAL.—Not later than 6 months after the

date of enactment of the Truth in Caller ID Act of 2009, the Commission shall prescribe regulations to implement this subsection.

(B) CONTENT OF REGULATIONS.— (i) IN GENERAL.—The regulations required under

subparagraph (A) shall include such exemptions from the prohibition under paragraph (1) as the Commis- sion determines is appropriate.

(ii) SPECIFIC EXEMPTION FOR LAW ENFORCEMENT AGENCIES OR COURT ORDERS.—The regulations re- quired under subparagraph (A) shall exempt from the prohibition under paragraph (1) transmissions in con- nection with—

(I) any authorized activity of a law enforce- ment agency; or

(II) a court order that specifically authorizes the use of caller identification manipulation.

(4) REPORT.—Not later than 6 months after the enactment of the Truth in Caller ID Act of 2009, the Commission shall re- port to Congress whether additional legislation is necessary to prohibit the provision of inaccurate caller identification infor- mation in technologies that are successor or replacement tech- nologies to telecommunications service or IP-enabled voice service.

(5) PENALTIES.— (A) CIVIL FORFEITURE.—

(i) IN GENERAL.—Any person that is determined by the Commission, in accordance with paragraphs (3) and (4) of section 503(b), to have violated this sub- section shall be liable to the United States for a for- feiture penalty. A forfeiture penalty under this para- graph shall be in addition to any other penalty pro-

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vided for by this Act. The amount of the forfeiture penalty determined under this paragraph shall not ex- ceed $10,000 for each violation, or 3 times that amount for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $1,000,000 for any single act or failure to act.

(ii) RECOVERY.—Any forfeiture penalty determined under clause (i) shall be recoverable pursuant to sec- tion 504(a).

(iii) PROCEDURE.—No forfeiture liability shall be determined under clause (i) against any person unless such person receives the notice required by section 503(b)(3) or section 503(b)(4).

(iv) 2-YEAR STATUTE OF LIMITATIONS.—No for- feiture penalty shall be determined or imposed against any person under clause (i) if the violation charged oc- curred more than 2 years prior to the date of issuance of the required notice or notice or apparent liability. (B) CRIMINAL FINE.—Any person who willfully and

knowingly violates this subsection shall upon conviction thereof be fined not more than $10,000 for each violation, or 3 times that amount for each day of a continuing viola- tion, in lieu of the fine provided by section 501 for such a violation. This subparagraph does not supersede the provi- sions of section 501 relating to imprisonment or the impo- sition of a penalty of both fine and imprisonment. (6) ENFORCEMENT BY STATES.—

(A) IN GENERAL.—The chief legal officer of a State, or any other State officer authorized by law to bring actions on behalf of the residents of a State, may bring a civil ac- tion, as parens patriae, on behalf of the residents of that State in an appropriate district court of the United States to enforce this subsection or to impose the civil penalties for violation of this subsection, whenever the chief legal of- ficer or other State officer has reason to believe that the interests of the residents of the State have been or are being threatened or adversely affected by a violation of this subsection or a regulation under this subsection.

(B) NOTICE.—The chief legal officer or other State offi- cer shall serve written notice on the Commission of any civil action under subparagraph (A) prior to initiating such civil action. The notice shall include a copy of the com- plaint to be filed to initiate such civil action, except that if it is not feasible for the State to provide such prior no- tice, the State shall provide such notice immediately upon instituting such civil action.

(C) AUTHORITY TO INTERVENE.—Upon receiving the no- tice required by subparagraph (B), the Commission shall have the right—

(i) to intervene in the action; (ii) upon so intervening, to be heard on all matters

arising therein; and (iii) to file petitions for appeal.

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(D) CONSTRUCTION.—For purposes of bringing any civil action under subparagraph (A), nothing in this para- graph shall prevent the chief legal officer or other State of- ficer from exercising the powers conferred on that officer by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attend- ance of witnesses or the production of documentary and other evidence.

(E) VENUE; SERVICE OR PROCESS.— (i) VENUE.—An action brought under subpara-

graph (A) shall be brought in a district court of the United States that meets applicable requirements re- lating to venue under section 1391 of title 28, United States Code.

(ii) SERVICE OF PROCESS.—In an action brought under subparagraph (A)—

(I) process may be served without regard to the territorial limits of the district or of the State in which the action is instituted; and

(II) a person who participated in an alleged violation that is being litigated in the civil action may be joined in the civil action without regard to the residence of the person.

(7) EFFECT ON OTHER LAWS.—This subsection does not pro- hibit any lawfully authorized investigative, protective, or intel- ligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.

(8) DEFINITIONS.—For purposes of this subsection: (A) CALLER IDENTIFICATION INFORMATION.—The term

‘‘caller identification information’’ means information pro- vided by a caller identification service regarding the tele- phone number of, or other information regarding the origi- nation of, a call made using a telecommunications service or IP-enabled voice service.

(B) CALLER IDENTIFICATION SERVICE.—The term ‘‘caller identification service’’ means any service or device de- signed to provide the user of the service or device with the telephone number of, or other information regarding the origination of, a call made using a telecommunications service or IP-enabled voice service. Such term includes automatic number identification services.

(C) IP-ENABLED VOICE SERVICE.—The term ‘‘IP-enabled voice service’’ has the meaning given that term by section 9.3 of the Commission’s regulations (47 C.F.R. 9.3), as those regulations may be amended by the Commission from time to time. (9) LIMITATION.—Notwithstanding any other provision of

this section, subsection (f) shall not apply to this subsection or to the regulations under this subsection. (f) EFFECT ON STATE LAW.—

(1) STATE LAW NOT PREEMPTED.—Except for the standards prescribed under subsection (d) and subject to paragraph (2) of this subsection, nothing in this section or in the regulations

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prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits—

(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements;

(B) the use of automatic telephone dialing systems; (C) the use of artificial or prerecorded voice messages;

or (D) the making of telephone solicitations.

(2) STATE USE OF DATABASES.—If, pursuant to subsection (c)(3), the Commission requires the establishment of a single national database of telephone numbers of subscribers who ob- ject to receiving telephone solicitations, a State or local author- ity may not, in its regulation of telephone solicitations, require the use of any database, list, or listing system that does not include the part of such single national database that relates to such State. (g) ACTIONS BY STATES.—

(1) AUTHORITY OF STATES.—Whenever the attorney general of a State, or an official or agency designated by a State, has reason to believe that any person has engaged or is engaging in a pattern or practice of telephone calls or other trans- missions to residents of that State in violation of this section or the regulations prescribed under this section, the State may bring a civil action on behalf of its residents to enjoin such calls, an action to recover for actual monetary loss or receive $500 in damages for each violation, or both such actions. If the court finds the defendant willfully or knowingly violated such regulations, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under the preceding sentence.

(2) EXCLUSIVE JURISDICTION OF FEDERAL COURTS.—The dis- trict courts of the United States, the United States courts of any territory, and the District Court of the United States for the District of Columbia shall have exclusive jurisdiction over all civil actions brought under this subsection. Upon proper ap- plication, such courts shall also have jurisdiction to issue writs of mandamus, or orders affording like relief, commanding the defendant to comply with the provisions of this section or regu- lations prescribed under this section, including the require- ment that the defendant take such action as is necessary to re- move the danger of such violation. Upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond.

(3) RIGHTS OF COMMISSION.—The State shall serve prior written notice of any such civil action upon the Commission and provide the Commission with a copy of its complaint, ex- cept in any case where such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Commission shall have the right (A) to intervene in the action, (B) upon so intervening, to be heard on all matters arising therein, and (C) to file petitions for appeal.

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(4) VENUE; SERVICE OF PROCESS.—Any civil action brought under this subsection in a district court of the United States may be brought in the district wherein the defendant is found or is an inhabitant or transacts business or wherein the viola- tion occurred or is occurring, and process in such cases may be served in any district in which the defendant is an inhabitant or where the defendant may be found.

(5) INVESTIGATORY POWERS.—For purposes of bringing any civil action under this subsection, nothing in this section shall prevent the attorney general of a State, or an official or agency designated by a State, from exercising the powers conferred on the attorney general or such official by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.

(6) EFFECT ON STATE COURT PROCEEDINGS.—Nothing con- tained in this subsection shall be construed to prohibit an au- thorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of such State.

(7) LIMITATION.—Whenever the Commission has instituted a civil action for violation of regulations prescribed under this section, no State may, during the pendency of such action insti- tuted by the Commission, subsequently institute a civil action against any defendant named in the Commission’s complaint for any violation as alleged in the Commission’s complaint.

(8) DEFINITION.—As used in this subsection, the term ‘‘at- torney general’’ means the chief legal officer of a State. (h) JUNK FAX ENFORCEMENT REPORT.—The Commission shall

submit an annual report to Congress regarding the enforcement during the past year of the provisions of this section relating to sending of unsolicited advertisements to telephone facsimile ma- chines, which report shall include—

(1) the number of complaints received by the Commission during such year alleging that a consumer received an unsolic- ited advertisement via telephone facsimile machine in violation of the Commission’s rules;

(2) the number of citations issued by the Commission pur- suant to section 503 during the year to enforce any law, regu- lation, or policy relating to sending of unsolicited advertise- ments to telephone facsimile machines;

(3) the number of notices of apparent liability issued by the Commission pursuant to section 503 during the year to en- force any law, regulation, or policy relating to sending of unso- licited advertisements to telephone facsimile machines;

(4) for each notice referred to in paragraph (3)— (A) the amount of the proposed forfeiture penalty in-

volved; (B) the person to whom the notice was issued; (C) the length of time between the date on which the

complaint was filed and the date on which the notice was issued; and

(D) the status of the proceeding;

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(5) the number of final orders imposing forfeiture penalties issued pursuant to section 503 during the year to enforce any law, regulation, or policy relating to sending of unsolicited ad- vertisements to telephone facsimile machines;

(6) for each forfeiture order referred to in paragraph (5)— (A) the amount of the penalty imposed by the order; (B) the person to whom the order was issued; (C) whether the forfeiture penalty has been paid; and (D) the amount paid;

(7) for each case in which a person has failed to pay a for- feiture penalty imposed by such a final order, whether the Commission referred such matter for recovery of the penalty; and

(8) for each case in which the Commission referred such an order for recovery—

(A) the number of days from the date the Commission issued such order to the date of such referral;

(B) whether an action has been commenced to recover the penalty, and if so, the number of days from the date the Commission referred such order for recovery to the date of such commencement; and

SEC. 228. ø47 U.S.C. 228¿ REGULATION OF CARRIER OFFERING OF PAY- PER-CALL SERVICES.

(a) PURPOSE.—It is the purpose of this section— (1) to put into effect a system of national regulation and

review that will oversee interstate pay-per-call services; and (2) to recognize the Commission’s authority to prescribe

regulations and enforcement procedures and conduct oversight to afford reasonable protection to consumers of pay-per-call services and to assure that violations of Federal law do not occur. (b) GENERAL AUTHORITY FOR REGULATIONS.—The Commission

by regulation shall, within 270 days after the date of enactment of this section, establish a system for oversight and regulation of pay- per-call services in order to provide for the protection of consumers in accordance with this Act and other applicable Federal statutes and regulations. The Commission’s final rules shall—

(1) include measures that provide a consumer of pay-per- call services with adequate and clear descriptions of the rights of the caller;

(2) define the obligations of common carriers with respect to the provision of pay-per-call services;

(3) include requirements on such carriers to protect against abusive practices by providers of pay-per-call services;

(4) identify procedures by which common carriers and pro- viders of pay-per-call services may take affirmative steps to protect against nonpayment of legitimate charges; and

(5) require that any service described in subparagraphs (A) and (B) of subsection (i)(1) be offered only through the use of certain telephone number prefixes and area codes.

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(c) COMMON CARRIER OBLIGATIONS.—Within 270 days after the date of enactment of this section, the Commission shall, by regula- tion, establish the following requirements for common carriers:

(1) CONTRACTUAL OBLIGATIONS TO COMPLY.—Any common carrier assigning to a provider of pay-per-call services a tele- phone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) shall require by contract or tariff that such provider comply with the provi- sions of titles II and III of the Telephone Disclosure and Dis- pute Resolution Act and the regulations prescribed by the Fed- eral Trade Commission pursuant to those titles.

(2) INFORMATION AVAILABILITY.—A common carrier that by tariff or contract assigns a telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) to a provider of a pay-per-call service shall make readily available on request to Federal and State agen- cies and other interested persons—

(A) a list of the telephone numbers for each of the pay- per-call services it carries;

(B) a short description of each such service; (C) a statement of the total cost or the cost per minute

and any other fees for each such service; (D) a statement of the pay-per-call service’s name,

business address, and business telephone; and (E) such other information as the Commission con-

siders necessary for the enforcement of this section and other applicable Federal statutes and regulations. (3) COMPLIANCE PROCEDURES.—A common carrier that by

contract or tariff assigns a telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) to a provider of pay-per-call services shall ter- minate, in accordance with procedures specified in such regula- tions, the offering of a pay-per-call service of a provider if the carrier knows or reasonably should know that such service is not provided in compliance with title II or III of the Telephone Disclosure and Dispute Resolution Act or the regulations pre- scribed by the Federal Trade Commission pursuant to such ti- tles.

(4) SUBSCRIBER DISCONNECTION PROHIBITED.—A common carrier shall not disconnect or interrupt a subscriber’s local ex- change telephone service or long distance telephone service be- cause of nonpayment of charges for any pay-per-call service.

(5) BLOCKING AND PRESUBSCRIPTION.—A common carrier that provides local exchange service shall—

(A) offer telephone subscribers (where technically fea- sible) the option of blocking access from their telephone number to all, or to certain specific, prefixes or area codes used by pay-per-call services, which option—

(i) shall be offered at no charge (I) to all sub- scribers for a period of 60 days after the issuance of the regulations under subsection (b), and (II) to any subscriber who subscribes to a new telephone number until 60 days after the time the new telephone number is effective; and

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(ii) shall otherwise be offered at a reasonable fee; and (B) offer telephone subscribers (where the Commission

determines it is technically and economically feasible), in combination with the blocking option described under sub- paragraph (A), the option of presubscribing to or blocking only specific pay-per-call services for a reasonable one-time charge.

The regulations prescribed under subparagraph (A)(i) of this paragraph may permit the costs of such blocking to be recov- ered by contract or tariff, but such costs may not be recovered from local or long-distance ratepayers. Nothing in this sub- section precludes a common carrier from filing its rates and regulations regarding blocking and presubscription in its inter- state tariffs.

(6) VERIFICATION OF CHARITABLE STATUS.—A common car- rier that assigns by contract or tariff a telephone number with a prefix or area code designated by the Commission in accord- ance with subsection (b)(5) to a provider of pay-per-call services that the carrier knows or reasonably should know is engaged in soliciting charitable contributions shall obtain from such provider proof of the tax exempt status of any person or orga- nization for which contributions are solicited.

(7) BILLING FOR 800 CALLS.—A common carrier shall pro- hibit by tariff or contract the use of any 800 telephone number, or other telephone number advertised or widely understood to be toll free, in a manner that would result in—

(A) the calling party being assessed, by virtue of com- pleting the call, a charge for the call;

(B) the calling party being connected to a pay-per-call service;

(i) the calling party has a written agreement (in- cluding an agreement transmitted through electronic medium) that meets the requirements of paragraph (8); or

(ii) the calling party is charged for the information in accordance with paragraph (9); (D) the calling party being called back collect for the

provision of audio information services or simultaneous voice conversation services; or

(E) the calling party being assessed, by virtue of being asked to connect or otherwise transfer to a pay-per-call service, a charge for the call. (8) SUBSCRIPTION AGREEMENTS FOR BILLING FOR INFORMA-

TION PROVIDED VIA TOLL-FREE CALLS.— (A) IN GENERAL.—For purposes of paragraph (7)(C)(i),

a written subscription does not meet the requirements of this paragraph unless the agreement specifies the material terms and conditions under which the information is of- fered and includes—

(i) the rate at which charges are assessed for the information;

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(ii) the information provider’s name; (iii) the information provider’s business address; (iv) the information provider’s regular business

telephone number; (v) the information provider’s agreement to notify

the subscriber at least one billing cycle in advance of all future changes in the rates charged for the infor- mation; and

(vi) the subscriber’s choice of payment method, which may be by direct remit, debit, prepaid account, phone bill, or credit or calling card. (B) BILLING ARRANGEMENTS.—If a subscriber elects,

pursuant to subparagraph (A)(vi), to pay by means of a phone bill—

(i) the agreement shall clearly explain that the subscriber will be assessed for calls made to the infor- mation service from the subscriber’s phone line;

(ii) the phone bill shall include, in prominent type, the following disclaimer:

‘‘Common carriers may not disconnect local or long distance telephone service for failure to pay disputed charges for information services.’’; and (iii) the phone bill shall clearly list the 800 num-

ber dialed. (C) USE OF PINS TO PREVENT UNAUTHORIZED USE.—A

written agreement does not meet the requirements of this paragraph unless it—

(i) includes a unique personal identification num- ber or other subscriber-specific identifier and requires a subscriber to use this number or identifier to obtain access to the information provided and includes in- structions on its use; and

(ii) assures that any charges for services accessed by use of the subscriber’s personal identification num- ber or subscriber-specific identifier be assessed to sub- scriber’s source of payment elected pursuant to sub- paragraph (A)(vi). (D) EXCEPTIONS.—Notwithstanding paragraph (7)(C),

a written agreement that meets the requirements of this paragraph is not required—

(i) for calls utilizing telecommunications devices for the deaf;

(ii) for directory services provided by a common carrier or its affiliate or by a local exchange carrier or its affiliate; or

(iii) for any purchase of goods or of services that are not information services. (E) TERMINATION OF SERVICE.—On receipt by a com-

mon carrier of a complaint by any person that an informa- tion provider is in violation of the provisions of this sec- tion, a carrier shall—

(i) promptly investigate the complaint; and (ii) if the carrier reasonably determines that the

complaint is valid, it may terminate the provision of

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service to an information provider unless the provider supplies evidence of a written agreement that meets the requirements of this section. (F) TREATMENT OF REMEDIES.—The remedies provided

in this paragraph are in addition to any other remedies that are available under title V of this Act. (9) CHARGES BY CREDIT, PREPAID, DEBIT, CHARGE, OR CALL-

ING CARD IN ABSENCE OF AGREEMENT.—For purposes of para- graph (7)(C)(ii), a calling party is not charged in accordance with this paragraph unless the calling party is charged by means of a credit, prepaid, debit, charge, or calling card and the information service provider includes in response to each call an introductory disclosure message that—

(A) clearly states that there is a charge for the call; (B) clearly states the service’s total cost per minute

and any other fees for the service or for any service to which the caller may be transferred;

(D) asks the caller for the card number; (E) clearly states that charges for the call begin at the

end of the introductory message; and (F) clearly states that the caller can hang up at or be-

fore the end of the introductory message without incurring any charge whatsoever. (10) BYPASS OF INTRODUCTORY DISCLOSURE MESSAGE.—The

requirements of paragraph (9) shall not apply to calls from re- peat callers using a bypass mechanism to avoid listening to the introductory message: Provided, That information providers shall disable such a bypass mechanism after the institution of any price increase and for a period of time determined to be sufficient by the Federal Trade Commission to give callers ade- quate and sufficient notice of a price increase.

(11) DEFINITION OF CALLING CARD.—As used in this sub- section, the term ‘‘calling card’’ means an identifying number or code unique to the individual, that is issued to the indi- vidual by a common carrier and enables the individual to be charged by means of a phone bill for charges incurred inde- pendent of where the call originates. (d) BILLING AND COLLECTION PRACTICES.—The regulations re-

quired by this section shall require that any common carrier that by tariff or contract assigns a telephone number with a prefix or area code designated by the Commission in accordance with sub- section (b)(5) to a provider of a pay-per-call service and that offers billing and collection services to such provider—

(1) ensure that a subscriber is not billed— (A) for pay-per-call services that such carrier knows or

reasonably should know was provided in violation of the regulations issued pursuant to title II of the Telephone Disclosure and Dispute Resolution Act; or

(B) under such other circumstances as the Commission determines necessary in order to protect subscribers from abusive practices;

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(2) establish a local or a toll-free telephone number to an- swer questions and provide information on subscribers’ rights and obligations with regard to their use of pay-per-call services and to provide to callers the name and mailing address of any provider of pay-per-call services offered by the common carrier;

(3) within 60 days after the issuance of final regulations pursuant to subsection (b), provide, either directly or through contract with any local exchange carrier that provides billing or collection services to the common carrier, to all of such com- mon carrier’s telephone subscribers, to all new subscribers, and to all subscribers requesting service at a new location, a disclo- sure statement that sets forth all rights and obligations of the subscriber and the carrier with respect to the use and payment for pay-per-call services, including the right of a subscriber not to be billed and the applicable blocking option; and

(4) in any billing to telephone subscribers that includes charges for any pay-per-call service—

(A) display any charges for pay-per-call services in a part of the subscriber’s bill that is identified as not being related to local and long distance telephone charges;

(B) for each charge so displayed, specify, at a min- imum, the type of service, the amount of the charge, and the date, time, and duration of the call; and

(e) LIABILITY.— (1) COMMON CARRIERS NOT LIABLE FOR TRANSMISSION OR

BILLING.—No common carrier shall be liable for a criminal or civil sanction or penalty solely because the carrier provided transmission or billing and collection for a pay-per-call service unless the carrier knew or reasonably should have known that such service was provided in violation of a provision of, or reg- ulation prescribed pursuant to, title II or III of the Telephone Disclosure and Dispute Resolution Act or any other Federal law. This paragraph shall not prevent the Commission from imposing a sanction or penalty on a common carrier for a viola- tion by that carrier of a regulation prescribed under this sec- tion.

(2) CIVIL LIABILITY.—No cause of action may be brought in any court or administrative agency against any common car- rier or any of its affiliates on account of any act of the carrier or affiliate to terminate any pay-per-call service in order to comply with the regulations prescribed under this section, title II or III of the Telephone Disclosure and Dispute Resolution Act, or any other Federal law unless the complainant dem- onstrates that the carrier or affiliate did not act in good faith. (f) SPECIAL PROVISIONS.—

(1) CONSUMER REFUND REQUIREMENTS.—The regulations required by subsection (d) shall establish procedures, con- sistent with the provisions of titles II and III of the Telephone Disclosure and Dispute Resolution Act, to ensure that carriers and other parties providing billing and collection services with respect to pay-per-call services provide appropriate refunds to subscribers who have been billed for pay-per-call services pur-

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suant to programs that have been found to have violated this section or such regulations, any provision of, or regulations prescribed pursuant to, title II or III of the Telephone Disclo- sure and Dispute Resolution Act, or any other Federal law.

(2) RECOVERY OF COSTS.—The regulations prescribed by the Commission under this section shall permit a common car- rier to recover its cost of complying with such regulations from providers of pay-per-call services, but shall not permit such costs to be recovered from local or long distance ratepayers.

(3) RECOMMENDATIONS ON DATA PAY-PER-CALL.—The Com- mission, within one year after the date of enactment of this section, shall submit to the Congress the Commission’s rec- ommendations with respect to the extension of regulations under this section to persons that provide, for a per-call charge, data services that are not pay-per-call services. (g) EFFECT ON OTHER LAW.—

(1) NO PREEMPTION OF ELECTION LAW.—Nothing in this section shall relieve any provider of pay-per-call services, com- mon carrier, local exchange carrier, or any other person from the obligation to comply with Federal, State, and local election statutes and regulations.

(2) CONSUMER PROTECTION LAWS.—Nothing in this section shall relieve any provider of pay-per-call services, common car- rier, local exchange carrier, or any other person from the obli- gation to comply with any Federal, State, or local statute or regulation relating to consumer protection or unfair trade.

(3) GAMBLING LAWS.—Nothing in this section shall pre- clude any State from enforcing its statutes and regulations with regard to lotteries, wagering, betting, and other gambling activities.

(4) STATE AUTHORITY.—Nothing in this section shall pre- clude any State from enacting and enforcing additional and complementary oversight and regulatory systems or proce- dures, or both, so long as such systems and procedures govern intrastate services and do not significantly impede the enforce- ment of this section or other Federal statutes.

(5) ENFORCEMENT OF EXISTING REGULATIONS.—Nothing in this section shall be construed to prohibit the Commission from enforcing regulations prescribed prior to the date of enactment of this section in fulfilling the requirements of this section to the extent that such regulations are consistent with the provi- sions of this section. (h) EFFECT ON DIAL-A-PORN PROHIBITIONS.—Nothing in this

section shall affect the provisions of section 223 of this Act. (i) DEFINITION OF PAY-PER-CALL SERVICES.—For purposes of

this section— (1) The term ‘‘pay-per-call services’’ means any service—

(A) in which any person provides or purports to pro- vide—

(i) audio information or audio entertainment pro- duced or packaged by such person;

(ii) access to simultaneous voice conversation serv- ices; or

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(iii) any service, including the provision of a prod- uct, the charges for which are assessed on the basis of the completion of the call; (B) for which the caller pays a per-call or per-time-in-

terval charge that is greater than, or in addition to, the charge for transmission of the call; and

(C) which is accessed through use of a 900 telephone number or other prefix or area code designated by the Commission in accordance with subsection (b)(5). (2) Such term does not include directory services provided

by a common carrier or its affiliate or by a local exchange car- rier or its affiliate, or any service for which users are assessed charges only after entering into a presubscription or com- parable arrangement with the provider of such service.

SEC. 229. ø47 U.S.C. 229¿ COMMUNICATIONS ASSISTANCE FOR LAW EN- FORCEMENT ACT COMPLIANCE.

(a) IN GENERAL.—The Commission shall prescribe such rules as are necessary to implement the requirements of the Communica- tions Assistance for Law Enforcement Act.

(b) SYSTEMS SECURITY AND INTEGRITY.—The rules prescribed pursuant to subsection (a) shall include rules to implement section 105 of the Communications Assistance for Law Enforcement Act that require common carriers—

(1) to establish appropriate policies and procedures for the supervision and control of its officers and employees—

(A) to require appropriate authorization to activate interception of communications or access to call-identifying information; and

(B) to prevent any such interception or access without such authorization; (2) to maintain secure and accurate records of any inter-

ception or access with or without such authorization; and (3) to submit to the Commission the policies and proce-

dures adopted to comply with the requirements established under paragraphs (1) and (2). (c) COMMISSION REVIEW OF COMPLIANCE.—The Commission

shall review the policies and procedures submitted under sub- section (b)(3) and shall order a common carrier to modify any such policy or procedure that the Commission determines does not com- ply with Commission regulations. The Commission shall conduct such investigations as may be necessary to insure compliance by common carriers with the requirements of the regulations pre- scribed under this section.

(d) PENALTIES.—For purposes of this Act, a violation by an offi- cer or employee of any policy or procedure adopted by a common carrier pursuant to subsection (b), or of a rule prescribed by the Commission pursuant to subsection (a), shall be considered to be a violation by the carrier of a rule prescribed by the Commission pur- suant to this Act.

(e) COST RECOVERY FOR COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT COMPLIANCE.—

(1) PETITIONS AUTHORIZED.—A common carrier may peti- tion the Commission to adjust charges, practices, classifica- tions, and regulations to recover costs expended for making

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modifications to equipment, facilities, or services pursuant to the requirements of section 103 of the Communications Assist- ance for Law Enforcement Act.

(2) COMMISSION AUTHORITY.—The Commission may grant, with or without modification, a petition under paragraph (1) if the Commission determines that such costs are reasonable and that permitting recovery is consistent with the public interest. The Commission may, consistent with maintaining just and reasonable charges, practices, classifications, and regulations in connection with the provision of interstate or foreign com- munication by wire or radio by a common carrier, allow car- riers to adjust such charges, practices, classifications, and reg- ulations in order to carry out the purposes of this Act.

(3) JOINT BOARD.—The Commission shall convene a Fed- eral-State joint board to recommend appropriate changes to part 36 of the Commission’s rules with respect to recovery of costs pursuant to charges, practices, classifications, and regula- tions under the jurisdiction of the Commission.

SEC. 230. ø47 U.S.C. 230¿ PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.

(a) FINDINGS.—The Congress finds the following: (1) The rapidly developing array of Internet and other

interactive computer services available to individual Americans represent an extraordinary advance in the availability of edu- cational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a min- imum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and en- tertainment services. (b) POLICY.—It is the policy of the United States—

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize user control over what information is received by in- dividuals, families, and schools who use the Internet and other interactive computer services;

(4) to remove disincentives for the development and utili- zation of blocking and filtering technologies that empower par- ents to restrict their children’s access to objectionable or inap- propriate online material; and

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1 So in law. Probably should be subparagraph (A).

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer. (c) PROTECTION FOR ‘‘GOOD SAMARITAN’’ BLOCKING AND

SCREENING OF OFFENSIVE MATERIAL.— (1) TREATMENT OF PUBLISHER OR SPEAKER.—No provider or

user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) CIVIL LIABILITY.—No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to re- strict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, ex- cessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to in- formation content providers or others the technical means to restrict access to material described in paragraph (1) 1.

(d) OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE.—A pro- vider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive com- puter service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commer- cially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, cur- rent providers of such protections.

(e) EFFECT ON OTHER LAWS.— (1) NO EFFECT ON CRIMINAL LAW.—Nothing in this section

shall be construed to impair the enforcement of section 223 or 231 of this Act, chapter 71 (relating to obscenity) or 110 (relat- ing to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute.

(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW.—Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

(3) STATE LAW.—Nothing in this section shall be construed to prevent any State from enforcing any State law that is con- sistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

(4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW.—Noth- ing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law. (f) DEFINITIONS.—As used in this section:

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1 Section 231 of the Communications Act of 1934 was added by section 1403 of the Child On- line Protection Act (P.L. 105–277; Oct. 21, 1998; 112 Stat. 2681–736). Sections 1402 and 1405 of that Act contained the following related provisions:

SEC. 1402. CONGRESSIONAL FINDINGS. The Congress finds that—

(1) while custody, care, and nurture of the child resides first with the parent, the wide- spread availability of the Internet presents opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or con- trol;

(2) the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them is a compelling governmental interest;

(3) to date, while the industry has developed innovative ways to help parents and edu- cators restrict material that is harmful to minors through parental control protections and self-regulation, such efforts have not provided a national solution to the problem of minors accessing harmful material on the World Wide Web;

(4) a prohibition on the distribution of material harmful to minors, combined with legiti- mate defenses, is currently the most effective and least restrictive means by which to satisfy the compelling government interest; and

(5) notwithstanding the existence of protections that limit the distribution over the World Wide Web of material that is harmful to minors, parents, educators, and industry must con- tinue efforts to find ways to protect children from being exposed to harmful material found on the Internet.

SEC. 1405. STUDY BY COMMISSION ON ONLINE CHILD PROTECTION. (a) ESTABLISHMENT.—There is hereby established a temporary Commission to be known as the

Commission on Online Child Protection (in this section referred to as the ‘‘Commission’’) for the purpose of conducting a study under this section regarding methods to help reduce access by minors to material that is harmful to minors on the Internet.

(b) MEMBERSHIP.—The Commission shall be composed of 19 members, as follows: (1) INDUSTRY MEMBERS.—The Commission shall include 16 members who shall consist of

representatives of— (A) providers of Internet filtering or blocking services or software; (B) Internet access services; (C) labeling or ratings services;

Continued

(1) INTERNET.—The term ‘‘Internet’’ means the inter- national computer network of both Federal and non-Federal interoperable packet switched data networks.

(2) INTERACTIVE COMPUTER SERVICE.—The term ‘‘inter- active computer service’’ means any information service, sys- tem, or access software provider that provides or enables com- puter access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by li- braries or educational institutions.

(3) INFORMATION CONTENT PROVIDER.—The term ‘‘informa- tion content provider’’ means any person or entity that is re- sponsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

(4) ACCESS SOFTWARE PROVIDER.—The term ‘‘access soft- ware provider’’ means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

(A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search,

subset, organize, reorganize, or translate content. SEC. 231. ø47 U.S.C. 231¿ RESTRICTION OF ACCESS BY MINORS TO MA-

TERIALS COMMERCIALLY DISTRIBUTED BY MEANS OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS. 1

(a) REQUIREMENT TO RESTRICT ACCESS.—

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94Sec. 231 COMMUNICATIONS ACT OF 1934

(D) Internet portal or search services; (E) domain name registration services; (F) academic experts; and (G) providers that make content available over the Internet.

Of the members of the Commission by reason of this paragraph, an equal number shall be appointed by the Speaker of the House of Representatives and by the Majority Leader of the Senate. Members of the Commission appointed on or before October 31, 1999, shall re- main members.

(2) EX OFFICIO MEMBERS.—The Commission shall include the following officials: (A) The Assistant Secretary (or the Assistant Secretary’s designee). (B) The Attorney General (or the Attorney General’s designee). (C) The Chairman of the Federal Trade Commission (or the Chairman’s designee).

(3) PROHIBITION OF PAY.—Members of the Commission shall not receive any pay by reason of their membership on the Commission.

(d) CHAIRPERSON.—The chairperson of the Commission shall be elected by a vote of a majority of the members, which shall take place not later than 30 days after the first meeting of the Commission.

(e) STUDY.— (1) IN GENERAL.—The Commission shall conduct a study to identify technological or other

methods that— (A) will help reduce access by minors to material that is harmful to minors on the

Internet; and (B) may meet the requirements for use as affirmative defenses for purposes of section

231(c) of the Communications Act of 1934 (as added by this title). Any methods so identified shall be used as the basis for making legislative recommenda- tions to the Congress under subsection (d)(3).

(2) SPECIFIC METHODS.—In carrying out the study, the Commission shall identify and ana- lyze various technological tools and methods for protecting minors from material that is harmful to minors, which shall include (without limitation)—

(A) a common resource for parents to use to help protect minors (such as a ‘‘one-click- away’’ resource);

(B) filtering or blocking software or services; (C) labeling or rating systems; (D) age verification systems; (E) the establishment of a domain name for posting of any material that is harmful

to minors; and (F) any other existing or proposed technologies or methods for reducing access by mi-

nors to such material. (3) ANALYSIS.—In analyzing technologies and other methods identified pursuant to para-

graph (2), the Commission shall examine— (A) the cost of such technologies and methods; (B) the effects of such technologies and methods on law enforcement entities; (C) the effects of such technologies and methods on privacy; (D) the extent to which material that is harmful to minors is globally distributed and

the effect of such technologies and methods on such distribution; (E) the accessibility of such technologies and methods to parents; and (F) such other factors and issues as the Commission considers relevant and appro-

priate. (f) REPORT.—Not later than 2 years after the enactment of this Act, the Commission shall sub-

mit a report to the Congress containing the results of the study under this section, which shall include—

(1) a description of the technologies and methods identified by the study and the results of the analysis of each such technology and method;

(2) the conclusions and recommendations of the Commission regarding each such tech- nology or method;

(3) recommendations for legislative or administrative actions to implement the conclusions of the committee; and

(4) a description of the technologies or methods identified by the study that may meet the requirements for use as affirmative defenses for purposes of section 231(c) of the Com- munications Act of 1934 (as added by this title).

(g) RULES OF THE COMMISSION.— (1) QUORUM.—Nine members of the Commission shall constitute a quorum for conducting

the business of the Commission. (2) MEETINGS.—Any meetings held by the Commission shall be duly noticed at least 14

days in advance and shall be open to the public. (3) OPPORTUNITIES TO TESTIFY.—The Commission shall provide opportunities for rep-

resentatives of the general public to testify. (4) ADDITIONAL RULES.—The Commission may adopt other rules as necessary to carry out

this section.’’. (h) GIFTS, BEQUESTS, AND DEVISES.—The Commission may accept, use, and dispose of gifts,

bequests, or devises of services or property, both real (including the use of office space) and per- sonal, for the purpose of aiding or facilitating the work of the Commission. Gifts or grants not used at the termination of the Commission shall be returned to the donor or grantee.

(l) * TERMINATION.—The Commission shall terminate 30 days after the submission of the re- port under subsection (d) or November 30, 2000, whichever occurs earlier.

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95 Sec. 231COMMUNICATIONS ACT OF 1934

(m) * INAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.—The Federal Advisory Com- mittee Act (5 U.S.C. App.) shall not apply to the Commission.

* [So in law as amended by section 401 of the Electronic Signatures in Global and National Commerce Act (P.L. 106–229; 114 Stat 476) and section 5001 of the Intellectual Property and Communications Omnibus Reform Act of 1999 (P.L. 106–113, Appendix I; 113 Stat. 1501A–521). Should have been redesignated as subsections (i) and (j).]

(1) PROHIBITED CONDUCT.—Whoever knowingly and with knowledge of the character of the material, in interstate or for- eign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

(2) INTENTIONAL VIOLATIONS.—In addition to the penalties under paragraph (1), whoever intentionally violates such para- graph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of vio- lation shall constitute a separate violation.

(3) CIVIL PENALTY.—In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each vio- lation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (b) INAPPLICABILITY OF CARRIERS AND OTHER SERVICE PRO-

VIDERS.—For purposes of subsection (a), a person shall not be con- sidered to make any communication for commercial purposes to the extent that such person is—

(1) a telecommunications carrier engaged in the provision of a telecommunications service;

(2) a person engaged in the business of providing an Inter- net access service;

(3) a person engaged in the business of providing an Inter- net information location tool; or

(4) similarly engaged in the transmission, storage, re- trieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, ex- cept that such person’s deletion of a particular communication or material made by another person in a manner consistent with subsection (c) or section 230 shall not constitute such se- lection or alteration of the content of the communication. (c) AFFIRMATIVE DEFENSE.—

(1) DEFENSE.—It is an affirmative defense to prosecution under this section that the defendant, in good faith, has re- stricted access by minors to material that is harmful to mi- nors—

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

(C) by any other reasonable measures that are feasible under available technology. (2) PROTECTION FOR USE OF DEFENSES.—No cause of action

may be brought in any court or administrative agency against

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96Sec. 231 COMMUNICATIONS ACT OF 1934

1 So in law. Should probably be ‘‘section’’.

any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense author- ized under this subsection or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. (d) PRIVACY PROTECTION REQUIREMENTS.—

(1) DISCLOSURE OF INFORMATION LIMITED.—A person mak- ing a communication described in subsection (a)—

(A) shall not disclose any information collected for the purposes of restricting access to such communications to individuals 17 years of age or older without the prior writ- ten or electronic consent of—

(i) the individual concerned, if the individual is an adult; or

(ii) the individual’s parent or guardian, if the indi- vidual is under 17 years of age; and (B) shall take such actions as are necessary to prevent

unauthorized access to such information by a person other than the person making such communication and the re- cipient of such communication. (2) EXCEPTIONS.—A person making a communication de-

scribed in subsection (a) may disclose such information if the disclosure is—

(A) necessary to make the communication or conduct a legitimate business activity related to making the com- munication; or

(B) made pursuant to a court order authorizing such disclosure.

(e) DEFINITIONS.—For purposes of this subsection 1, the fol- lowing definitions shall apply:

(1) BY MEANS OF THE WORLD WIDE WEB.—The term ‘‘by means of the World Wide Web’’ means by placement of mate- rial in a computer server-based file archive so that it is pub- licly accessible, over the Internet, using hypertext transfer pro- tocol or any successor protocol.

(2) COMMERCIAL PURPOSES; ENGAGED IN THE BUSINESS.— (A) COMMERCIAL PURPOSES.—A person shall be consid-

ered to make a communication for commercial purposes only if such person is engaged in the business of making such communications.

(B) ENGAGED IN THE BUSINESS.—The term ‘‘engaged in the business’’ means that the person who makes a commu- nication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business, with the objective of earning a profit as a re- sult of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person’s sole or prin- cipal business or source of income). A person may be con-

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97 Sec. 251COMMUNICATIONS ACT OF 1934

sidered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web. (3) INTERNET.—The term ‘‘Internet’’ means the combina-

tion of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.

(4) INTERNET ACCESS SERVICE.—The term ‘‘Internet access service’’ means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommuni- cations services.

(5) INTERNET INFORMATION LOCATION TOOL.—The term ‘‘Internet information location tool’’ means a service that refers or links users to an online location on the World Wide Web. Such term includes directories, indices, references, pointers, and hypertext links.

(6) MATERIAL THAT IS HARMFUL TO MINORS.—The term ‘‘material that is harmful to minors’’ means any communica- tion, picture, image, graphic image file, article, recording, writ- ing, or other matter of any kind that is obscene or that—

(A) the average person, applying contemporary com- munity standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner pat- ently offensive with respect to minors, an actual or simu- lated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. (7) MINOR.—The term ‘‘minor’’ means any person under 17

years of age.

PART II—DEVELOPMENT OF COMPETITIVE MARKETS

SEC. 251. ø47 U.S.C. 251¿ INTERCONNECTION. (a) GENERAL DUTY OF TELECOMMUNICATIONS CARRIERS.—Each

telecommunications carrier has the duty— (1) to interconnect directly or indirectly with the facilities

and equipment of other telecommunications carriers; and

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98Sec. 251 COMMUNICATIONS ACT OF 1934

(2) not to install network features, functions, or capabili- ties that do not comply with the guidelines and standards es- tablished pursuant to section 255 or 256. (b) OBLIGATIONS OF ALL LOCAL EXCHANGE CARRIERS.—Each

local exchange carrier has the following duties: (1) RESALE.—The duty not to prohibit, and not to impose

unreasonable or discriminatory conditions or limitations on, the resale of its telecommunications services.

(2) NUMBER PORTABILITY.—The duty to provide, to the ex- tent technically feasible, number portability in accordance with requirements prescribed by the Commission.

(3) DIALING PARITY.—The duty to provide dialing parity to competing providers of telephone exchange service and tele- phone toll service, and the duty to permit all such providers to have nondiscriminatory access to telephone numbers, operator services, directory assistance, and directory listing, with no un- reasonable dialing delays.

(4) ACCESS TO RIGHTS-OF-WAY.—The duty to afford access to the poles, ducts, conduits, and rights-of-way of such carrier to competing providers of telecommunications services on rates, terms, and conditions that are consistent with section 224.

(5) RECIPROCAL COMPENSATION.—The duty to establish re- ciprocal compensation arrangements for the transport and ter- mination of telecommunications. (c) ADDITIONAL OBLIGATIONS OF INCUMBENT LOCAL EXCHANGE

CARRIERS.—In addition to the duties contained in subsection (b), each incumbent local exchange carrier has the following duties:

(1) DUTY TO NEGOTIATE.—The duty to negotiate in good faith in accordance with section 252 the particular terms and conditions of agreements to fulfill the duties described in para- graphs (1) through (5) of subsection (b) and this subsection. The requesting telecommunications carrier also has the duty to negotiate in good faith the terms and conditions of such agreements.

(2) INTERCONNECTION.—The duty to provide, for the facili- ties and equipment of any requesting telecommunications car- rier, interconnection with the local exchange carrier’s net- work—

(A) for the transmission and routing of telephone ex- change service and exchange access;

(B) at any technically feasible point within the car- rier’s network;

(C) that is at least equal in quality to that provided by the local exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection; and

(D) on rates, terms, and conditions that are just, rea- sonable, and nondiscriminatory, in accordance with the terms and conditions of the agreement and the require- ments of this section and section 252. (3) UNBUNDLED ACCESS.—The duty to provide, to any re-

questing telecommunications carrier for the provision of a tele- communications service, nondiscriminatory access to network elements on an unbundled basis at any technically feasible

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99 Sec. 251COMMUNICATIONS ACT OF 1934

point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory in accordance with the terms and condi- tions of the agreement and the requirements of this section and section 252. An incumbent local exchange carrier shall provide such unbundled network elements in a manner that al- lows requesting carriers to combine such elements in order to provide such telecommunications service.

(4) RESALE.—The duty— (A) to offer for resale at wholesale rates any tele-

communications service that the carrier provides at retail to subscribers who are not telecommunications carriers; and

(B) not to prohibit, and not to impose unreasonable or discriminatory conditions or limitations on, the resale of such telecommunications service, except that a State com- mission may, consistent with regulations prescribed by the Commission under this section, prohibit a reseller that ob- tains at wholesale rates a telecommunications service that is available at retail only to a category of subscribers from offering such service to a different category of subscribers. (5) NOTICE OF CHANGES.—The duty to provide reasonable

public notice of changes in the information necessary for the transmission and routing of services using that local exchange carrier’s facilities or networks, as well as of any other changes that would affect the interoperability of those facilities and networks.

(6) COLLOCATION.—The duty to provide, on rates, terms, and conditions that are just, reasonable, and nondiscrim- inatory, for physical collocation of equipment necessary for interconnection or access to unbundled network elements at the premises of the local exchange carrier, except that the car- rier may provide for virtual collocation if the local exchange carrier demonstrates to the State commission that physical collocation is not practical for technical reasons or because of space limitations. (d) IMPLEMENTATION.—

(1) IN GENERAL.—Within 6 months after the date of enact- ment of the Telecommunications Act of 1996, the Commission shall complete all actions necessary to establish regulations to implement the requirements of this section.

(2) ACCESS STANDARDS.—In determining what network ele- ments should be made available for purposes of subsection (c)(3), the Commission shall consider, at a minimum, wheth- er—

(A) access to such network elements as are proprietary in nature is necessary; and

(B) the failure to provide access to such network ele- ments would impair the ability of the telecommunications carrier seeking access to provide the services that it seeks to offer. (3) PRESERVATION OF STATE ACCESS REGULATIONS.—In pre-

scribing and enforcing regulations to implement the require- ments of this section, the Commission shall not preclude the

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100Sec. 251 COMMUNICATIONS ACT OF 1934

1 Paragraph (3) of section 251(e) was added by section 3(a) of the Wireless Communications and Public Safety Act of 1999 (P.L. 106–81; 113 Stat. 3). Subsection (b) of such section provides as follows:

(b) ø47 U.S.C. 615¿ SUPPORT.—The Federal Communications Commission shall encourage and support efforts by States to deploy comprehensive end-to-end emergency communications infra- structure and programs, based on coordinated statewide plans, including seamless, ubiquitous, reliable wireless telecommunications networks and enhanced wireless 9–1–1 service. In encour- aging and supporting that deployment, the Commission shall consult and cooperate with State and local officials responsible for emergency services and public safety, the telecommunications industry (specifically including the cellular and other wireless telecommunications service pro- viders), the motor vehicle manufacturing industry, emergency medical service providers and emergency dispatch providers, transportation officials, special 9–1–1 districts, public safety, fire service and law enforcement officials, consumer groups, and hospital emergency and trauma care personnel (including emergency physicians, trauma surgeons, and nurses). The Commission shall encourage each State to develop and implement coordinated statewide deployment plans, through an entity designated by the governor, and to include representatives of the foregoing organizations and entities in development and implementation of such plans. Nothing in this subsection shall be construed to authorize or require the Commission to impose obligations or costs on any person.

enforcement of any regulation, order, or policy of a State com- mission that—

(A) establishes access and interconnection obligations of local exchange carriers;

(B) is consistent with the requirements of this section; and

(e) NUMBERING ADMINISTRATION.— (1) COMMISSION AUTHORITY AND JURISDICTION.—The Com-

mission shall create or designate one or more impartial entities to administer telecommunications numbering and to make such numbers available on an equitable basis. The Commission shall have exclusive jurisdiction over those portions of the North American Numbering Plan that pertain to the United States. Nothing in this paragraph shall preclude the Commis- sion from delegating to State commissions or other entities all or any portion of such jurisdiction.

(2) COSTS.—The cost of establishing telecommunications numbering administration arrangements and number port- ability shall be borne by all telecommunications carriers on a competitively neutral basis as determined by the Commission.

(3) 1 UNIVERSAL EMERGENCY TELEPHONE NUMBER.—The Commission and any agency or entity to which the Commission has delegated authority under this subsection shall designate 9–1–1 as the universal emergency telephone number within the United States for reporting an emergency to appropriate authorities and requesting assistance. The designation shall apply to both wireline and wireless telephone service. In mak- ing the designation, the Commission (and any such agency or entity) shall provide appropriate transition periods for areas in which 9–1–1 is not in use as an emergency telephone number on the date of enactment of the Wireless Communications and Public Safety Act of 1999. (f) EXEMPTIONS, SUSPENSIONS, AND MODIFICATIONS.—

(1) EXEMPTION FOR CERTAIN RURAL TELEPHONE COMPANIES.—

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(A) EXEMPTION.—Subsection (c) of this section shall not apply to a rural telephone company until (i) such com- pany has received a bona fide request for interconnection, services, or network elements, and (ii) the State commis- sion determines (under subparagraph (B)) that such re- quest is not unduly economically burdensome, is tech- nically feasible, and is consistent with section 254 (other than subsections (b)(7) and (c)(1)(D) thereof).

(B) STATE TERMINATION OF EXEMPTION AND IMPLEMEN- TATION SCHEDULE.—The party making a bona fide request of a rural telephone company for interconnection, services, or network elements shall submit a notice of its request to the State commission. The State commission shall conduct an inquiry for the purpose of determining whether to ter- minate the exemption under subparagraph (A). Within 120 days after the State commission receives notice of the re- quest, the State commission shall terminate the exemption if the request is not unduly economically burdensome, is technically feasible, and is consistent with section 254 (other than subsections (b)(7) and (c)(1)(D) thereof). Upon termination of the exemption, a State commission shall es- tablish an implementation schedule for compliance with the request that is consistent in time and manner with Commission regulations.

(C) LIMITATION ON EXEMPTION.—The exemption pro- vided by this paragraph shall not apply with respect to a request under subsection (c) from a cable operator pro- viding video programming, and seeking to provide any telecommunications service, in the area in which the rural telephone company provides video programming. The limi- tation contained in this subparagraph shall not apply to a rural telephone company that is providing video program- ming on the date of enactment of the Telecommunications Act of 1996. (2) SUSPENSIONS AND MODIFICATIONS FOR RURAL CAR-

RIERS.—A local exchange carrier with fewer than 2 percent of the Nation’s subscriber lines installed in the aggregate nation- wide may petition a State commission for a suspension or modification of the application of a requirement or require- ments of subsection (b) or (c) to telephone exchange service fa- cilities specified in such petition. The State commission shall grant such petition to the extent that, and for such duration as, the State commission determines that such suspension or modification—

(A) is necessary— (i) to avoid a significant adverse economic impact

on users of telecommunications services generally; (ii) to avoid imposing a requirement that is un-

duly economically burdensome; or (iii) to avoid imposing a requirement that is tech-

nically infeasible; and (B) is consistent with the public interest, convenience,

and necessity.

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102Sec. 251 COMMUNICATIONS ACT OF 1934

The State commission shall act upon any petition filed under this paragraph within 180 days after receiving such petition. Pending such action, the State commission may suspend en- forcement of the requirement or requirements to which the pe- tition applies with respect to the petitioning carrier or carriers. (g) CONTINUED ENFORCEMENT OF EXCHANGE ACCESS AND

INTERCONNECTION REQUIREMENTS.—On and after the date of enact- ment of the Telecommunications Act of 1996, each local exchange carrier, to the extent that it provides wireline services, shall provide exchange access, information access, and exchange services for such access to interexchange carriers and information service providers in accordance with the same equal access and non- discriminatory interconnection restrictions and obligations (includ- ing receipt of compensation) that apply to such carrier on the date immediately preceding the date of enactment of the Telecommuni- cations Act of 1996 under any court order, consent decree, or regu- lation, order, or policy of the Commission, until such restrictions and obligations are explicitly superseded by regulations prescribed by the Commission after such date of enactment. During the period beginning on such date of enactment and until such restrictions and obligations are so superseded, such restrictions and obligations shall be enforceable in the same manner as regulations of the Com- mission.

(h) DEFINITION OF INCUMBENT LOCAL EXCHANGE CARRIER.— (1) DEFINITION.—For purposes of this section, the term ‘‘in-

cumbent local exchange carrier’’ means, with respect to an area, the local exchange carrier that—

(A) on the date of enactment of the Telecommuni- cations Act of 1996, provided telephone exchange service in such area; and

(B)(i) on such date of enactment, was deemed to be a member of the exchange carrier association pursuant to section 69.601(b) of the Commission’s regulations (47 C.F.R. 69.601(b)); or

(ii) is a person or entity that, on or after such date of enactment, became a successor or assign of a member de- scribed in clause (i). (2) TREATMENT OF COMPARABLE CARRIERS AS INCUM-

BENTS.—The Commission may, by rule, provide for the treat- ment of a local exchange carrier (or class or category thereof) as an incumbent local exchange carrier for purposes of this sec- tion if—

(A) such carrier occupies a position in the market for telephone exchange service within an area that is com- parable to the position occupied by a carrier described in paragraph (1);

(B) such carrier has substantially replaced an incum- bent local exchange carrier described in paragraph (1); and

(C) such treatment is consistent with the public inter- est, convenience, and necessity and the purposes of this section.

(i) SAVINGS PROVISION.—Nothing in this section shall be con- strued to limit or otherwise affect the Commission’s authority under section 201.

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103 Sec. 252COMMUNICATIONS ACT OF 1934

SEC. 252. ø47 U.S.C. 252¿ PROCEDURES FOR NEGOTIATION, ARBITRA- TION, AND APPROVAL OF AGREEMENTS.

(a) AGREEMENTS ARRIVED AT THROUGH NEGOTIATION.— (1) VOLUNTARY NEGOTIATIONS.—Upon receiving a request

for interconnection, services, or network elements pursuant to section 251, an incumbent local exchange carrier may negotiate and enter into a binding agreement with the requesting tele- communications carrier or carriers without regard to the standards set forth in subsections (b) and (c) of section 251. The agreement shall include a detailed schedule of itemized charges for interconnection and each service or network ele- ment included in the agreement. The agreement, including any interconnection agreement negotiated before the date of enact- ment of the Telecommunications Act of 1996, shall be sub- mitted to the State commission under subsection (e) of this sec- tion.

(2) MEDIATION.—Any party negotiating an agreement under this section may, at any point in the negotiation, ask a State commission to participate in the negotiation and to medi- ate any differences arising in the course of the negotiation. (b) AGREEMENTS ARRIVED AT THROUGH COMPULSORY ARBITRA-

TION.— (1) ARBITRATION.—During the period from the 135th to the

160th day (inclusive) after the date on which an incumbent local exchange carrier receives a request for negotiation under this section, the carrier or any other party to the negotiation may petition a State commission to arbitrate any open issues.

(2) DUTY OF PETITIONER.— (A) A party that petitions a State commission under

paragraph (1) shall, at the same time as it submits the pe- tition, provide the State commission all relevant docu- mentation concerning—

(i) the unresolved issues; (ii) the position of each of the parties with respect

to those issues; and (iii) any other issue discussed and resolved by the

parties. (B) A party petitioning a State commission under

paragraph (1) shall provide a copy of the petition and any documentation to the other party or parties not later than the day on which the State commission receives the peti- tion. (3) OPPORTUNITY TO RESPOND.—A non-petitioning party to

a negotiation under this section may respond to the other par- ty’s petition and provide such additional information as it wishes within 25 days after the State commission receives the petition.

(4) ACTION BY STATE COMMISSION.— (A) The State commission shall limit its consideration

of any petition under paragraph (1) (and any response thereto) to the issues set forth in the petition and in the response, if any, filed under paragraph (3).

(B) The State commission may require the petitioning party and the responding party to provide such informa-

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104Sec. 252 COMMUNICATIONS ACT OF 1934

tion as may be necessary for the State commission to reach a decision on the unresolved issues. If any party refuses or fails unreasonably to respond on a timely basis to any rea- sonable request from the State commission, then the State commission may proceed on the basis of the best informa- tion available to it from whatever source derived.

(C) The State commission shall resolve each issue set forth in the petition and the response, if any, by imposing appropriate conditions as required to implement sub- section (c) upon the parties to the agreement, and shall conclude the resolution of any unresolved issues not later than 9 months after the date on which the local exchange carrier received the request under this section. (5) REFUSAL TO NEGOTIATE.—The refusal of any other

party to the negotiation to participate further in the negotia- tions, to cooperate with the State commission in carrying out its function as an arbitrator, or to continue to negotiate in good faith in the presence, or with the assistance, of the State com- mission shall be considered a failure to negotiate in good faith. (c) STANDARDS FOR ARBITRATION.—In resolving by arbitration

under subsection (b) any open issues and imposing conditions upon the parties to the agreement, a State commission shall—

(1) ensure that such resolution and conditions meet the re- quirements of section 251, including the regulations prescribed by the Commission pursuant to section 251;

(2) establish any rates for interconnection, services, or net- work elements according to subsection (d); and

(3) provide a schedule for implementation of the terms and conditions by the parties to the agreement. (d) PRICING STANDARDS.—

(1) INTERCONNECTION AND NETWORK ELEMENT CHARGES.— Determinations by a State commission of the just and reason- able rate for the interconnection of facilities and equipment for purposes of subsection (c)(2) of section 251, and the just and reasonable rate for network elements for purposes of sub- section (c)(3) of such section—

(A) shall be— (i) based on the cost (determined without ref-

erence to a rate-of-return or other rate-based pro- ceeding) of providing the interconnection or network element (whichever is applicable), and

(ii) nondiscriminatory, and (B) may include a reasonable profit.

(2) CHARGES FOR TRANSPORT AND TERMINATION OF TRAF- FIC.—

(A) IN GENERAL.—For the purposes of compliance by an incumbent local exchange carrier with section 251(b)(5), a State commission shall not consider the terms and condi- tions for reciprocal compensation to be just and reasonable unless—

(i) such terms and conditions provide for the mu- tual and reciprocal recovery by each carrier of costs associated with the transport and termination on each

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105 Sec. 252COMMUNICATIONS ACT OF 1934

carrier’s network facilities of calls that originate on the network facilities of the other carrier; and

(ii) such terms and conditions determine such costs on the basis of a reasonable approximation of the additional costs of terminating such calls. (B) RULES OF CONSTRUCTION.—This paragraph shall

not be construed— (i) to preclude arrangements that afford the mu-

tual recovery of costs through the offsetting of recip- rocal obligations, including arrangements that waive mutual recovery (such as bill-and-keep arrangements); or

(ii) to authorize the Commission or any State com- mission to engage in any rate regulation proceeding to establish with particularity the additional costs of transporting or terminating calls, or to require car- riers to maintain records with respect to the addi- tional costs of such calls.

(3) WHOLESALE PRICES FOR TELECOMMUNICATIONS SERV- ICES.—For the purposes of section 251(c)(4), a State commis- sion shall determine wholesale rates on the basis of retail rates charged to subscribers for the telecommunications service re- quested, excluding the portion thereof attributable to any mar- keting, billing, collection, and other costs that will be avoided by the local exchange carrier. (e) APPROVAL BY STATE COMMISSION.—

(1) APPROVAL REQUIRED.—Any interconnection agreement adopted by negotiation or arbitration shall be submitted for ap- proval to the State commission. A State commission to which an agreement is submitted shall approve or reject the agree- ment, with written findings as to any deficiencies.

(2) GROUNDS FOR REJECTION.—The State commission may only reject—

(A) an agreement (or any portion thereof) adopted by negotiation under subsection (a) if it finds that—

(i) the agreement (or portion thereof) discrimi- nates against a telecommunications carrier not a party to the agreement; or

(ii) the implementation of such agreement or por- tion is not consistent with the public interest, conven- ience, and necessity; or (B) an agreement (or any portion thereof) adopted by

arbitration under subsection (b) if it finds that the agree- ment does not meet the requirements of section 251, in- cluding the regulations prescribed by the Commission pur- suant to section 251, or the standards set forth in sub- section (d) of this section. (3) PRESERVATION OF AUTHORITY.—Notwithstanding para-

graph (2), but subject to section 253, nothing in this section shall prohibit a State commission from establishing or enforc- ing other requirements of State law in its review of an agree- ment, including requiring compliance with intrastate tele- communications service quality standards or requirements.

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106Sec. 252 COMMUNICATIONS ACT OF 1934

(4) SCHEDULE FOR DECISION.—If the State commission does not act to approve or reject the agreement within 90 days after submission by the parties of an agreement adopted by negotia- tion under subsection (a), or within 30 days after submission by the parties of an agreement adopted by arbitration under subsection (b), the agreement shall be deemed approved. No State court shall have jurisdiction to review the action of a State commission in approving or rejecting an agreement under this section.

(5) COMMISSION TO ACT IF STATE WILL NOT ACT.—If a State commission fails to act to carry out its responsibility under this section in any proceeding or other matter under this section, then the Commission shall issue an order preempting the State commission’s jurisdiction of that proceeding or matter within 90 days after being notified (or taking notice) of such failure, and shall assume the responsibility of the State commission under this section with respect to the proceeding or matter and act for the State commission.

(6) REVIEW OF STATE COMMISSION ACTIONS.—In a case in which a State fails to act as described in paragraph (5), the proceeding by the Commission under such paragraph and any judicial review of the Commission’s actions shall be the exclu- sive remedies for a State commission’s failure to act. In any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the re- quirements of section 251 and this section. (f) STATEMENTS OF GENERALLY AVAILABLE TERMS.—

(1) IN GENERAL.—A Bell operating company may prepare and file with a State commission a statement of the terms and conditions that such company generally offers within that State to comply with the requirements of section 251 and the regulations thereunder and the standards applicable under this section.

(2) STATE COMMISSION REVIEW.—A State commission may not approve such statement unless such statement complies with subsection (d) of this section and section 251 and the reg- ulations thereunder. Except as provided in section 253, nothing in this section shall prohibit a State commission from estab- lishing or enforcing other requirements of State law in its re- view of such statement, including requiring compliance with intrastate telecommunications service quality standards or re- quirements.

(3) SCHEDULE FOR REVIEW.—The State commission to which a statement is submitted shall, not later than 60 days after the date of such submission—

(A) complete the review of such statement under para- graph (2) (including any reconsideration thereof), unless the submitting carrier agrees to an extension of the period for such review; or

(B) permit such statement to take effect. (4) AUTHORITY TO CONTINUE REVIEW.—Paragraph (3) shall

not preclude the State commission from continuing to review

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a statement that has been permitted to take effect under sub- paragraph (B) of such paragraph or from approving or dis- approving such statement under paragraph (2).

(5) DUTY TO NEGOTIATE NOT AFFECTED.—The submission or approval of a statement under this subsection shall not relieve a Bell operating company of its duty to negotiate the terms and conditions of an agreement under section 251. (g) CONSOLIDATION OF STATE PROCEEDINGS.—Where not incon-

sistent with the requirements of this Act, a State commission may, to the extent practical, consolidate proceedings under sections 214(e), 251(f), 253, and this section in order to reduce administra- tive burdens on telecommunications carriers, other parties to the proceedings, and the State commission in carrying out its respon- sibilities under this Act.

(h) FILING REQUIRED.—A State commission shall make a copy of each agreement approved under subsection (e) and each state- ment approved under subsection (f) available for public inspection and copying within 10 days after the agreement or statement is ap- proved. The State commission may charge a reasonable and non- discriminatory fee to the parties to the agreement or to the party filing the statement to cover the costs of approving and filing such agreement or statement.

(i) AVAILABILITY TO OTHER TELECOMMUNICATIONS CARRIERS.— A local exchange carrier shall make available any interconnection, service, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement.

(j) DEFINITION OF INCUMBENT LOCAL EXCHANGE CARRIER.—For purposes of this section, the term ‘‘incumbent local exchange car- rier’’ has the meaning provided in section 251(h). SEC. 253. ø47 U.S.C. 253¿ REMOVAL OF BARRIERS TO ENTRY.

(a) IN GENERAL.—No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the ef- fect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

(b) STATE REGULATORY AUTHORITY.—Nothing in this section shall affect the ability of a State to impose, on a competitively neu- tral basis and consistent with section 254, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.

(c) STATE AND LOCAL GOVERNMENT AUTHORITY.—Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competi- tively neutral and nondiscriminatory basis, for use of public rights- of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.

(d) PREEMPTION.—If, after notice and an opportunity for public comment, the Commission determines that a State or local govern- ment has permitted or imposed any statute, regulation, or legal re- quirement that violates subsection (a) or (b), the Commission shall

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1 Section 623 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (P.L. 105–119; Nov. 26, 1997; 111 Stat. 2521) contained the following reporting requirments with respect to universal service:

SEC. 623. REPORT ON UNIVERSAL SERVICE UNDER THE TELECOMMUNICATIONS ACT OF 1996.— (a) The Federal Communications Commission shall undertake a review of the implementation by the Commission of the provisions of the Telecommunications Act of 1996 (Public Law 104– 104) relating to universal service. Such review shall be completed and submitted to the Congress no later than April 10, 1998.

(b) The report required under subsection (a) shall provide a detailed description of the extent to which the Commission interpretations reviewed under paragraphs (1) through (5) are con- sistent with the plain language of the Communications Act of 1934 (47 U.S.C. 151 et seq.), as amended by the Telecommunications Act of 1996, and shall include a review of—

(1) the definitions of ‘‘information service’’, ‘‘local exchange carrier’’, ‘‘telecommunications’’, ‘‘telecommunications service’’, ‘‘telecommunications carrier’’, and ‘‘telephone exchange serv- ice’’ that were added to section 3 of the Communications Act of 1934 (47 U.S.C. 153) by the Telecommunications Act of 1996 and the impact of the Commission’s interpretation of those definitions on the current and future provision of universal service to consumers in all areas of the Nation, including high cost and rural areas;

(2) the application of those definitions to mixed or hybrid services and the impact of such application on universal service definitions and support, and the consistency of the Commis- sion’s application of those definitions, including with respect to Internet access under sec- tion 254(h) of the Communications Act of 1934 (47 U.S.C. 254(h));

(3) who is required to contribute to universal service under section 254(d) of the Commu- nications Act of 1934 (47 U.S.C. 254(d)) and related existing Federal universal service sup- port mechanisms, and of any exemption of providers or exclusion of any service that in- cludes telecommunications from such requirement or support mechanisms;

(4) who is eligible under sections 254(e), 254(h)(1), and 254(h)(2) of the Communications Act of 1934 (47 U.S.C. 254(e), 254(h)(1), and 254(h)(2)) to receive specific Federal universal service support for the provision of universal service, and the consistency with which the Commission has interpreted each of those provisions of section 254; and

(5) the Commission’s decisions regarding the percentage of universal service support pro- vided by Federal mechanisms and the revenue base from which such support is derived.

preempt the enforcement of such statute, regulation, or legal re- quirement to the extent necessary to correct such violation or in- consistency.

(e) COMMERCIAL MOBILE SERVICE PROVIDERS.—Nothing in this section shall affect the application of section 332(c)(3) to commer- cial mobile service providers.

(f) RURAL MARKETS.—It shall not be a violation of this section for a State to require a telecommunications carrier that seeks to provide telephone exchange service or exchange access in a service area served by a rural telephone company to meet the require- ments in section 214(e)(1) for designation as an eligible tele- communications carrier for that area before being permitted to pro- vide such service. This subsection shall not apply—

(1) to a service area served by a rural telephone company that has obtained an exemption, suspension, or modification of section 251(c)(4) that effectively prevents a competitor from meeting the requirements of section 214(e)(1); and

(2) to a provider of commercial mobile services. SEC. 254. ø47 U.S.C. 254¿ UNIVERSAL SERVICE. 1

(a) PROCEDURES TO REVIEW UNIVERSAL SERVICE REQUIRE- MENTS.—

(1) FEDERAL-STATE JOINT BOARD ON UNIVERSAL SERVICE.— Within one month after the date of enactment of the Tele- communications Act of 1996, the Commission shall institute and refer to a Federal-State Joint Board under section 410(c) a proceeding to recommend changes to any of its regulations in order to implement sections 214(e) and this section, including the definition of the services that are supported by Federal universal service support mechanisms and a specific timetable for completion of such recommendations. In addition to the

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members of the Joint Board required under section 410(c), one member of such Joint Board shall be a State-appointed utility consumer advocate nominated by a national organization of State utility consumer advocates. The Joint Board shall, after notice and opportunity for public comment, make its rec- ommendations to the Commission 9 months after the date of enactment of the Telecommunications Act of 1996.

(2) COMMISSION ACTION.—The Commission shall initiate a single proceeding to implement the recommendations from the Joint Board required by paragraph (1) and shall complete such proceeding within 15 months after the date of enactment of the Telecommunications Act of 1996. The rules established by such proceeding shall include a definition of the services that are supported by Federal universal service support mechanisms and a specific timetable for implementation. Thereafter, the Commission shall complete any proceeding to implement sub- sequent recommendations from any Joint Board on universal service within one year after receiving such recommendations. (b) UNIVERSAL SERVICE PRINCIPLES.—The Joint Board and the

Commission shall base policies for the preservation and advance- ment of universal service on the following principles:

(1) QUALITY AND RATES.—Quality services should be avail- able at just, reasonable, and affordable rates.

(2) ACCESS TO ADVANCED SERVICES.—Access to advanced telecommunications and information services should be pro- vided in all regions of the Nation.

(3) ACCESS IN RURAL AND HIGH COST AREAS.—Consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services, includ- ing interexchange services and advanced telecommunications and information services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.

(4) EQUITABLE AND NONDISCRIMINATORY CONTRIBUTIONS.— All providers of telecommunications services should make an equitable and nondiscriminatory contribution to the preserva- tion and advancement of universal service.

(5) SPECIFIC AND PREDICTABLE SUPPORT MECHANISMS.— There should be specific, predictable and sufficient Federal and State mechanisms to preserve and advance universal service.

(6) ACCESS TO ADVANCED TELECOMMUNICATIONS SERVICES FOR SCHOOLS, HEALTH CARE, AND LIBRARIES.—Elementary and secondary schools and classrooms, health care providers, and libraries should have access to advanced telecommunications services as described in subsection (h).

(7) ADDITIONAL PRINCIPLES.—Such other principles as the Joint Board and the Commission determine are necessary and appropriate for the protection of the public interest, conven- ience, and necessity and are consistent with this Act. (c) DEFINITION.—

(1) IN GENERAL.—Universal service is an evolving level of telecommunications services that the Commission shall estab-

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1 Section 3006 of the Balanced Budget Act of 1997 (P.L. 105–33; 111 Stat. 269), which was repealed by section 622 of the Departments of Commerce, Justice, and State, the Judiciary, and Relate Agencies Appropriations Act; 1998 (P.L. 105–119; 111 Stat. 2521) contained the following provisions with respect to funds available to carry out section 254 of the Communications Act of 1934:

SEC. 3006. UNIVERSAL SERVICE FUND PAYMENT SCHEDULE. (a) APPROPRIATIONS TO THE UNIVERSAL SERVICE FUND.—

(1) APPROPRIATION.—There is hereby appropriated to the Commission $3,000,000,000 in fiscal year 2001, which shall be disbursed on October 1, 2000, to the Administrator of the Federal universal service support programs established pursuant to section 254 of the Com- munications Act of 1934 (47 U.S.C. 254), and which may be expended by the Administrator in support of such programs as provided pursuant to the rules implementing that section.

(2) RETURN TO TREASURY.—The Administrator shall transfer $3,000,000,000 from the funds collected for such support programs to the General Fund of the Treasury on October 1, 2001. (b) FEE ADJUSTMENTS.—The Commission shall direct the Administrator to adjust payments

by telecommunications carriers and other providers of interstate telecommunications so that the $3,000,000,000 of the total payments by such carriers or providers to the Administrator for fiscal year 2001 shall be deferred until October 1, 2001.

lish periodically under this section, taking into account ad- vances in telecommunications and information technologies and services. The Joint Board in recommending, and the Com- mission in establishing, the definition of the services that are supported by Federal universal service support mechanisms shall consider the extent to which such telecommunications services—

(A) are essential to education, public health, or public safety;

(B) have, through the operation of market choices by customers, been subscribed to by a substantial majority of residential customers;

(D) are consistent with the public interest, conven- ience, and necessity. (2) ALTERATIONS AND MODIFICATIONS.—The Joint Board

may, from time to time, recommend to the Commission modi- fications in the definition of the services that are supported by Federal universal service support mechanisms.

(3) SPECIAL SERVICES.—In addition to the services included in the definition of universal service under paragraph (1), the Commission may designate additional services for such support mechanisms for schools, libraries, and health care providers for the purposes of subsection (h). (d) TELECOMMUNICATIONS CARRIER CONTRIBUTION.—Every

telecommunications carrier that provides interstate telecommuni- cations services shall contribute, on an equitable and nondiscrim- inatory basis, to the specific, predictable, and sufficient mecha- nisms established by the Commission to preserve and advance uni- versal service. The Commission may exempt a carrier or class of carriers from this requirement if the carrier’s telecommunications activities are limited to such an extent that the level of such car- rier’s contribution to the preservation and advancement of uni- versal service would be de minimis. Any other provider of inter- state telecommunications may be required to contribute to the preservation and advancement of universal service if the public in- terest so requires. 1

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111 Sec. 254COMMUNICATIONS ACT OF 1934

(c) PRESERVATION OF AUTHORITY.—Nothing in this section shall affect the Administrator’s authority to determine the amounts that should be expended for universal service support pro- grams pursuant to section 254 of the Communications Act of 1934 and the rules implementing that section.

(d) DEFINITION.—For purposes of this section, the term ‘‘Administrator’’ means the Adminis- trator designated by the Federal Communications Commission to administer Federal universal service support programs pursuant to section 254 of the Communications Act of 1934.

(e) UNIVERSAL SERVICE SUPPORT.—After the date on which Commission regulations implementing this section take effect, only an eligible telecommunications carrier designated under section 214(e) shall be eligible to receive specific Federal universal service support. A carrier that receives such support shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. Any such support should be explicit and sufficient to achieve the purposes of this sec- tion.

(f) STATE AUTHORITY.—A State may adopt regulations not in- consistent with the Commission’s rules to preserve and advance universal service. Every telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equi- table and nondiscriminatory basis, in a manner determined by the State to the preservation and advancement of universal service in that State. A State may adopt regulations to provide for additional definitions and standards to preserve and advance universal serv- ice within that State only to the extent that such regulations adopt additional specific, predictable, and sufficient mechanisms to sup- port such definitions or standards that do not rely on or burden Federal universal service support mechanisms.

(g) INTEREXCHANGE AND INTERSTATE SERVICES.—Within 6 months after the date of enactment of the Telecommunications Act of 1996, the Commission shall adopt rules to require that the rates charged by providers of interexchange telecommunications services to subscribers in rural and high cost areas shall be no higher than the rates charged by each such provider to its subscribers in urban areas. Such rules shall also require that a provider of interstate interexchange telecommunications services shall provide such serv- ices to its subscribers in each State at rates no higher than the rates charged to its subscribers in any other State.

(h) TELECOMMUNICATIONS SERVICES FOR CERTAIN PROVIDERS.— (1) IN GENERAL.—

(A) HEALTH CARE PROVIDERS FOR RURAL AREAS.—A telecommunications carrier shall, upon receiving a bona fide request, provide telecommunications services which are necessary for the provision of health care services in a State, including instruction relating to such services, to any public or nonprofit health care provider that serves persons who reside in rural areas in that State at rates that are reasonably comparable to rates charged for simi- lar services in urban areas in that State. A telecommuni- cations carrier providing service under this paragraph shall be entitled to have an amount equal to the difference, if any, between the rates for services provided to health care providers for rural areas in a State and the rates for similar services provided to other customers in comparable rural areas in that State treated as a service obligation as

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112Sec. 254 COMMUNICATIONS ACT OF 1934

a part of its obligation to participate in the mechanisms to preserve and advance universal service.

(B) EDUCATIONAL PROVIDERS AND LIBRARIES.—All tele- communications carriers serving a geographic area shall, upon a bona fide request for any of its services that are within the definition of universal service under subsection (c)(3), provide such services to elementary schools, sec- ondary schools, and libraries for educational purposes at rates less than the amounts charged for similar services to other parties. The discount shall be an amount that the Commission, with respect to interstate services, and the States, with respect to intrastate services, determine is ap- propriate and necessary to ensure affordable access to and use of such services by such entities. A telecommunications carrier providing service under this paragraph shall—

(i) have an amount equal to the amount of the dis- count treated as an offset to its obligation to con- tribute to the mechanisms to preserve and advance universal service, or

(ii) notwithstanding the provisions of subsection (e) of this section, receive reimbursement utilizing the support mechanisms to preserve and advance uni- versal service.

(2) ADVANCED SERVICES.—The Commission shall establish competitively neutral rules—

(A) to enhance, to the extent technically feasible and economically reasonable, access to advanced telecommuni- cations and information services for all public and non- profit elementary and secondary school classrooms, health care providers, and libraries; and

(B) to define the circumstances under which a tele- communications carrier may be required to connect its net- work to such public institutional telecommunications users. (3) TERMS AND CONDITIONS.—Telecommunications services

and network capacity provided to a public institutional tele- communications user under this subsection may not be sold, resold, or otherwise transferred by such user in consideration for money or any other thing of value.

(4) ELIGIBILITY OF USERS.—No entity listed in this sub- section shall be entitled to preferential rates or treatment as required by this subsection, if such entity operates as a for- profit business, is a school described in paragraph (7)(A) with an endowment of more than $50,000,000, or is a library or li- brary consortium not eligible for assistance from a State li- brary administrative agency under the Library Services and Technology Act.

(5) 1 REQUIREMENTS FOR CERTAIN SCHOOLS WITH COM- PUTERS HAVING INTERNET ACCESS.—

(A) INTERNET SAFETY.—

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1 Section 1721 of the Children’s Internet Protection Act (P.L. 106–554; Appendix D; 114 Stat. 2763A–343) added paragraphs (5) and (6) and amended paragraph (7) of section 254(h) of the Communications Act of 1934. The Children’s Internet Protection Act also contained the following related provisions:

TITLE XVII—CHILDREN’S INTERNET PROTECTION

SEC. 1701. ø20 U.S.C. 6301 note¿ SHORT TITLE. This title may be cited as the ‘‘Children’s Internet Protection Act’’.

SEC. 1702. DISCLAIMERS. (a) DISCLAIMER REGARDING CONTENT.—Nothing in this title or the amendments made by this

title shall be construed to prohibit a local educational agency, elementary or secondary school, or library from blocking access on the Internet on computers owned or operated by that agency, school, or library to any content other than content covered by this title or the amendments made by this title.

(b) DISCLAIMER REGARDING PRIVACY.—Nothing in this title or the amendments made by this title shall be construed to require the tracking of Internet use by any identifiable minor or adult user.

SEC. 1703. ø47 U.S.C. 902 note¿ STUDY OF TECHNOLOGY PROTECTION MEASURES. (a) IN GENERAL.—Not later than 18 months after the date of the enactment of this Act, the

National Telecommunications and Information Administration shall initiate a notice and com- ment proceeding for purposes of—

(1) evaluating whether or not currently available technology protection measures, includ- ing commercial Internet blocking and filtering software, adequately addresses the needs of educational institutions;

(2) making recommendations on how to foster the development of measures that meet such needs; and

(3) evaluating the development and effectiveness of local Internet safety policies that are currently in operation after community input.

(b) DEFINITIONS.—In this section: (1) TECHNOLOGY PROTECTION MEASURE.—The term ‘‘technology protection measure’’ means

a specific technology that blocks or filters Internet access to visual depictions that are— (A) obscene, as that term is defined in section 1460 of title 18, United States Code; (B) child pornography, as that term is defined in section 2256 of title 18, United

States Code; or (C) harmful to minors.

(2) HARMFUL TO MINORS.—The term ‘‘harmful to minors’’ means any picture, image, graphic image file, or other visual depiction that—

(A) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;

(B) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and

(3) SEXUAL ACT; SEXUAL CONTACT.—The terms ‘‘sexual act’’ and ‘‘sexual contact’’ have the meanings given such terms in section 2246 of title 18, United States Code.

Subtitle A—Federal Funding for Educational Institution Computers

SEC. 1711. LIMITATION ON AVAILABILITY OF CERTAIN FUNDS FOR SCHOOLS. øAmended Title III of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6801

et seq.) by adding at the end a new part F¿

Subtitle B—Universal Service Discounts

SEC. 1721. REQUIREMENT FOR SCHOOLS AND LIBRARIES TO ENFORCE INTER- NET SAFETY POLICIES WITH TECHNOLOGY PROTECTION MEASURES FOR COMPUTERS WITH INTERNET ACCESS AS CONDITION OF UNIVERSAL SERV- ICE DISCOUNTS.

* * * * * * * (e) ø47 U.S.C. 254 note¿ SEPARABILITY.—If any provision of paragraph (5) or (6) of section

254(h) of the Communications Act of 1934, as amended by this section, or the application thereof to any person or circumstance is held invalid, the remainder of such paragraph and the applica- tion of such paragraph to other persons or circumstances shall not be affected thereby.

(f ) ø47 U.S.C. 254 note¿ REGULATIONS.— (1) REQUIREMENT.—The Federal Communications Commission shall prescribe regulations

for purposes of administering the provisions of paragraphs (5) and (6) of section 254(h) of the Communications Act of 1934, as amended by this section.

Continued

(i) IN GENERAL.—Except as provided in clause (ii), an elementary or secondary school having computers

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114Sec. 254 COMMUNICATIONS ACT OF 1934

(2) DEADLINE.—Notwithstanding any other provision of law, the Commission shall pre- scribe regulations under paragraph (1) so as to ensure that such regulations take effect 120 days after the date of the enactment of this Act.

(g) AVAILABILITY OF CERTAIN FUNDS FOR ACQUISITION OF TECHNOLOGY PROTECTION MEAS- URES.—

(1) IN GENERAL.—Notwithstanding any other provision of law, funds available under sec- tion 3134 or part A of title VI of the Elementary and Secondary Education Act of 1965, or under section 231 of the Library Services and Technology Act, may be used for the purchase or acquisition of technology protection measures that are necessary to meet the require- ments of this title and the amendments made by this title. No other sources of funds for the purchase or acquisition of such measures are authorized by this title, or the amend- ments made by this title.

(2) TECHNOLOGY PROTECTION MEASURE DEFINED.—In this section, the term ‘‘technology protection measure’’ has the meaning given that term in section 1703.

(h) ø47 U.S.C. 254 note¿ EFFECTIVE DATE.—The amendments made by this sectionshall take effect 120 days after the date of the enactment of this Act.

Subtitle C—Neighborhood Children’s Internet Protection

SEC. 1731. ø47 U.S.C. 609 note¿ SHORT TITLE. This subtitle may be cited as the ‘‘Neighborhood Children’s Internet Protection Act’’.

SEC. 1732. INTERNET SAFETY POLICY REQUIRED. øAmended Section 254 of the Communications Act of 1934 (47 U.S.C. 254) is amended by add-

ing at the end a new subsection (l), printed elsewhere in this compilation¿

SEC. 1733. ø47 U.S.C. 254 note¿ IMPLEMENTING REGULATIONS. Not later than 120 days after the date of enactment of this Act, the Federal Communications

Commission shall prescribe regulations for purposes of section 254(l) of the Communications Act of 1934, as added by section 1732 of this Act.

Subtitle D—Expedited Review

SEC. 1741. EXPEDITED REVIEW. (a) THREE-JUDGE DISTRICT COURT HEARING.—Notwithstanding any other provision of law, any

civil action challenging the constitutionality, on its face, of this title or any amendment made by this title, or any provision thereof, shall be heard by a district court of three judges convened pursuant to the provisions of section 2284 of title 28, United States Code.

(b) APPELLATE REVIEW.—Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of three judges in an action under subsection (a) holding this title or an amendment made by this title, or any provision thereof, unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.

with Internet access may not receive services at dis- count rates under paragraph (1)(B) unless the school, school board, local educational agency, or other au- thority with responsibility for administration of the school—

(I) submits to the Commission the certifi- cations described in subparagraphs (B) and (C);

(II) submits to the Commission a certification that an Internet safety policy has been adopted and implemented for the school under subsection (n( � and

(III) ensures the use of such computers in ac- cordance with the certifications. (ii) APPLICABILITY.—The prohibition in clause (i)

shall not apply with respect to a school that receives services at discount rates under paragraph (1)(B) only for purposes other than the provision of Internet ac- cess, Internet service, or internal connections.

(iii) PUBLIC NOTICE; HEARING.—An elementary or secondary school described in clause (i), or the school board, local educational agency, or other authority with responsibility for administration of the school, shall provide reasonable public notice and hold at

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least one public hearing or meeting to address the pro- posed Internet safety policy. In the case of an elemen- tary or secondary school other than an elementary or secondary school as defined in section 14101 of the El- ementary and Secondary Education Act of 1965 (20 U.S.C. 8801), the notice and hearing required by this clause may be limited to those members of the public with a relationship to the school. (B) CERTIFICATION WITH RESPECT TO MINORS.—A cer-

tification under this subparagraph is a certification that the school, school board, local educational agency, or other authority with responsibility for administration of the school—

(i) is enforcing a policy of Internet safety for mi- nors that includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are—

(I) obscene; (II) child pornography; or (III) harmful to minors;

(ii) is enforcing the operation of such technology protection measure during any use of such computers by minors; and

(iii) as part of its Internet safety policy is edu- cating minors about appropriate online behavior, in- cluding interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response. (C) CERTIFICATION WITH RESPECT TO ADULTS.—A cer-

tification under this paragraph is a certification that the school, school board, local educational agency, or other au- thority with responsibility for administration of the school—

(i) is enforcing a policy of Internet safety that in- cludes the operation of a technology protection meas- ure with respect to any of its computers with Internet access that protects against access through such com- puters to visual depictions that are—

(I) obscene; or (II) child pornography; and

(ii) is enforcing the operation of such technology protection measure during any use of such computers. (D) DISABLING DURING ADULT USE.—An administrator,

supervisor, or other person authorized by the certifying au- thority under subparagraph (A)(i) may disable the tech- nology protection measure concerned, during use by an adult, to enable access for bona fide research or other law- ful purpose.

(E) TIMING OF IMPLEMENTATION.— (i) IN GENERAL.—Subject to clause (ii) in the case

of any school covered by this paragraph as of the effec- tive date of this paragraph under section 1721(h) of

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the Children’s Internet Protection Act, the certification under subparagraphs (B) and (C) shall be made—

(I) with respect to the first program funding year under this subsection following such effective date, not later than 120 days after the beginning of such program funding year; and

(II) with respect to any subsequent program funding year, as part of the application process for such program funding year. (ii) PROCESS.—

(I) SCHOOLS WITH INTERNET SAFETY POLICY AND TECHNOLOGY PROTECTION MEASURES IN PLACE.—A school covered by clause (i) that has in place an Internet safety policy and technology pro- tection measures meeting the requirements nec- essary for certification under subparagraphs (B) and (C) shall certify its compliance with subpara- graphs (B) and (C) during each annual program application cycle under this subsection, except that with respect to the first program funding year after the effective date of this paragraph under section 1721(h) of the Children’s Internet Protection Act, the certifications shall be made not later than 120 days after the beginning of such first program funding year.

(II) SCHOOLS WITHOUT INTERNET SAFETY POL- ICY AND TECHNOLOGY PROTECTION MEASURES IN PLACE.—A school covered by clause (i) that does not have in place an Internet safety policy and technology protection measures meeting the re- quirements necessary for certification under sub- paragraphs (B) and (C)—

(aa) for the first program year after the effective date of this subsection in which it is applying for funds under this subsection, shall certify that it is undertaking such actions, in- cluding any necessary procurement proce- dures, to put in place an Internet safety policy and technology protection measures meeting the requirements necessary for certification under subparagraphs (B) and (C); and

(bb) for the second program year after the effective date of this subsection in which it is applying for funds under this subsection, shall certify that it is in compliance with subpara- graphs (B) and (C).

Any school that is unable to certify compliance with such requirements in such second program year shall be ineligible for services at discount rates or funding in lieu of services at such rates under this subsection for such second year and all subsequent program years under this subsection, until such time as such school comes into compli- ance with this paragraph.

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1 See footnote for paragraph (5).

(III) WAIVERS.—Any school subject to sub- clause (II) that cannot come into compliance with subparagraphs (B) and (C) in such second year program may seek a waiver of subclause (II)(bb) if State or local procurement rules or regulations or competitive bidding requirements prevent the making of the certification otherwise required by such subclause. A school, school board, local edu- cational agency, or other authority with responsi- bility for administration of the school shall notify the Commission of the applicability of such sub- clause to the school. Such notice shall certify that the school in question will be brought into compli- ance before the start of the third program year after the effective date of this subsection in which the school is applying for funds under this sub- section.

(F) NONCOMPLIANCE.— (i) FAILURE TO SUBMIT CERTIFICATION.—Any school

that knowingly fails to comply with the application guidelines regarding the annual submission of certifi- cation required by this paragraph shall not be eligible for services at discount rates or funding in lieu of serv- ices at such rates under this subsection.

(ii) FAILURE TO COMPLY WITH CERTIFICATION.— Any school that knowingly fails to ensure the use of its computers in accordance with a certification under subparagraphs (B) and (C) shall reimburse any funds and discounts received under this subsection for the period covered by such certification.

(iii) REMEDY OF NONCOMPLIANCE.— (I) FAILURE TO SUBMIT.—A school that has

failed to submit a certification under clause (i) may remedy the failure by submitting the certifi- cation to which the failure relates. Upon submittal of such certification, the school shall be eligible for services at discount rates under this subsection.

(II) FAILURE TO COMPLY.—A school that has failed to comply with a certification as described in clause (ii) may remedy the failure by ensuring the use of its computers in accordance with such certification. Upon submittal to the Commission of a certification or other appropriate evidence of such remedy, the school shall be eligible for serv- ices at discount rates under this subsection.

(6) 1 REQUIREMENTS FOR CERTAIN LIBRARIES WITH COM- PUTERS HAVING INTERNET ACCESS.—

(A) INTERNET SAFETY.— (i) IN GENERAL.—Except as provided in clause (ii),

a library having one or more computers with Internet access may not receive services at discount rates under paragraph (1)(B) unless the library—

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(I) submits to the Commission the certifi- cations described in subparagraphs (B) and (C); and

(II) submits to the Commission a certification that an Internet safety policy has been adopted and implemented for the library under subsection (n( � and

(III) ensures the use of such computers in ac- cordance with the certifications. (ii) APPLICABILITY.—The prohibition in clause (i)

shall not apply with respect to a library that receives services at discount rates under paragraph (1)(B) only for purposes other than the provision of Internet ac- cess, Internet service, or internal connections.

(iii) PUBLIC NOTICE; HEARING.—A library described in clause (i) shall provide reasonable public notice and hold at least one public hearing or meeting to address the proposed Internet safety policy. (B) CERTIFICATION WITH RESPECT TO MINORS.—A cer-

tification under this subparagraph is a certification that the library—

(I) obscene; (II) child pornography; or (III) harmful to minors; and

(ii) is enforcing the operation of such technology protection measure during any use of such computers by minors. (C) CERTIFICATION WITH RESPECT TO ADULTS.—A cer-

tification under this paragraph is a certification that the library—

(I) obscene; or (II) child pornography; and

(ii) is enforcing the operation of such technology protection measure during any use of such computers. (D) DISABLING DURING ADULT USE.—An administrator,

(E) TIMING OF IMPLEMENTATION.— (i) IN GENERAL.—Subject to clause (ii) in the case

of any library covered by this paragraph as of the ef- fective date of this paragraph under section 1721(h) of

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the Children’s Internet Protection Act, the certification under subparagraphs (B) and (C) shall be made—

(I) with respect to the first program funding year under this subsection following such effective date, not later than 120 days after the beginning of such program funding year; and

(II) with respect to any subsequent program funding year, as part of the application process for such program funding year. (ii) PROCESS.—

(I) LIBRARIES WITH INTERNET SAFETY POLICY AND TECHNOLOGY PROTECTION MEASURES IN PLACE.—A library covered by clause (i) that has in place an Internet safety policy and technology pro- tection measures meeting the requirements nec- essary for certification under subparagraphs (B) and (C) shall certify its compliance with subpara- graphs (B) and (C) during each annual program application cycle under this subsection, except that with respect to the first program funding year after the effective date of this paragraph under section 1721(h) of the Children’s Internet Protection Act, the certifications shall be made not later than 120 days after the beginning of such first program funding year.

(II) LIBRARIES WITHOUT INTERNET SAFETY POL- ICY AND TECHNOLOGY PROTECTION MEASURES IN PLACE.—A library covered by clause (i) that does not have in place an Internet safety policy and technology protection measures meeting the re- quirements necessary for certification under sub- paragraphs (B) and (C)—

Any library that is unable to certify compliance with such requirements in such second program year shall be ineligible for services at discount rates or funding in lieu of services at such rates under this subsection for such second year and all subsequent program years under this subsection, until such time as such library comes into compli- ance with this paragraph.

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(III) WAIVERS.—Any library subject to sub- clause (II) that cannot come into compliance with subparagraphs (B) and (C) in such second year may seek a waiver of subclause (II)(bb) if State or local procurement rules or regulations or competi- tive bidding requirements prevent the making of the certification otherwise required by such sub- clause. A library, library board, or other authority with responsibility for administration of the li- brary shall notify the Commission of the applica- bility of such subclause to the library. Such notice shall certify that the library in question will be brought into compliance before the start of the third program year after the effective date of this subsection in which the library is applying for funds under this subsection.

(F) NONCOMPLIANCE.— (i) FAILURE TO SUBMIT CERTIFICATION.—Any li-

brary that knowingly fails to comply with the applica- tion guidelines regarding the annual submission of certification required by this paragraph shall not be eligible for services at discount rates or funding in lieu of services at such rates under this subsection.

(ii) FAILURE TO COMPLY WITH CERTIFICATION.— Any library that knowingly fails to ensure the use of its computers in accordance with a certification under subparagraphs (B) and (C) shall reimburse all funds and discounts received under this subsection for the period covered by such certification.

(iii) REMEDY OF NONCOMPLIANCE.— (I) FAILURE TO SUBMIT.—A library that has

failed to submit a certification under clause (i) may remedy the failure by submitting the certifi- cation to which the failure relates. Upon submittal of such certification, the library shall be eligible for services at discount rates under this sub- section.

(II) FAILURE TO COMPLY.—A library that has failed to comply with a certification as described in clause (ii) may remedy the failure by ensuring the use of its computers in accordance with such certification. Upon submittal to the Commission of a certification or other appropriate evidence of such remedy, the library shall be eligible for serv- ices at discount rates under this subsection.

(7) DEFINITIONS.—For purposes of this subsection: (A) ELEMENTARY AND SECONDARY SCHOOLS.—The term

‘‘elementary and secondary schools’’ means elementary schools and secondary schools, as defined in section 9101 of the Elementary and Secondary Education Act of 1965.

(B) HEALTH CARE PROVIDER.—The term ‘‘health care provider’’ means—

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(i) post-secondary educational institutions offering health care instruction, teaching hospitals, and med- ical schools;

(ii) community health centers or health centers providing health care to migrants;

(iii) local health departments or agencies; (iv) community mental health centers; (v) not-for-profit hospitals; (vi) rural health clinics; and (vii) consortia of health care providers consisting

of one or more entities described in clauses (i) through (vi). (C) PUBLIC INSTITUTIONAL TELECOMMUNICATIONS

USER.—The term ‘‘public institutional telecommunications user’’ means an elementary or secondary school, a library, or a health care provider as those terms are defined in this paragraph.

(D) MINOR.—The term ‘‘minor’’ means any individual who has not attained the age of 17 years.

(E) OBSCENE.—The term ‘‘obscene’’ has the meaning given such term in section 1460 of title 18, United States Code.

(F) CHILD PORNOGRAPHY.—The term ‘‘child pornog- raphy’’ has the meaning given such term in section 2256 of title 18, United States Code.

(G) HARMFUL TO MINORS.—The term ‘‘harmful to mi- nors’’ means any picture, image, graphic image file, or other visual depiction that—

(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excre- tion;

(ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for mi- nors, an actual or simulated sexual act or sexual con- tact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and

(iii) taken as a whole, lacks serious literary, artis- tic, political, or scientific value as to minors. (H) SEXUAL ACT; SEXUAL CONTACT.—The terms ‘‘sexual

act’’ and ‘‘sexual contact’’ have the meanings given such terms in section 2246 of title 18, United States Code.

(I) TECHNOLOGY PROTECTION MEASURE.—The term ‘‘technology protection measure’’ means a specific tech- nology that blocks or filters Internet access to the material covered by a certification under paragraph (5) or (6) to which such certification relates.

(i) CONSUMER PROTECTION.—The Commission and the States should ensure that universal service is available at rates that are just, reasonable, and affordable.

(j) LIFELINE ASSISTANCE.—Nothing in this section shall affect the collection, distribution, or administration of the Lifeline Assist- ance Program provided for by the Commission under regulations set forth in section 69.117 of title 47, Code of Federal Regulations, and other related sections of such title.

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(k) SUBSIDY OF COMPETITIVE SERVICES PROHIBITED.—A tele- communications carrier may not use services that are not competi- tive to subsidize services that are subject to competition. The Com- mission, with respect to interstate services, and the States, with re- spect to intrastate services, shall establish any necessary cost allo- cation rules, accounting safeguards, and guidelines to ensure that services included in the definition of universal service bear no more than a reasonable share of the joint and common costs of facilities used to provide those services.

(l) INTERNET SAFETY POLICY REQUIREMENT FOR SCHOOLS AND LIBRARIES.—

(1) IN GENERAL.—In carrying out its responsibilities under subsection (h), each school or library to which subsection (h) applies shall—

(A) adopt and implement an Internet safety policy that addresses—

(i) access by minors to inappropriate matter on the Internet and World Wide Web;

(ii) the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications;

(iii) unauthorized access, including so-called ‘‘hacking’’, and other unlawful activities by minors on- line;

(iv) unauthorized disclosure, use, and dissemina- tion of personal identification information regarding minors; and

(v) measures designed to restrict minors’ access to materials harmful to minors; and (B) provide reasonable public notice and hold at least

one public hearing or meeting to address the proposed Internet safety policy. (2) LOCAL DETERMINATION OF CONTENT.—A determination

regarding what matter is inappropriate for minors shall be made by the school board, local educational agency, library, or other authority responsible for making the determination. No agency or instrumentality of the United States Government may—

(A) establish criteria for making such determination; (B) review the determination made by the certifying

school, school board, local educational agency, library, or other authority; or

(C) consider the criteria employed by the certifying school, school board, local educational agency, library, or other authority in the administration of subsection (h)(1)(B). (3) AVAILABILITY FOR REVIEW.—Each Internet safety policy

adopted under this subsection shall be made available to the Commission, upon request of the Commission, by the school, school board, local educational agency, library, or other author- ity responsible for adopting such Internet safety policy for pur- poses of the review of such Internet safety policy by the Com- mission.

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(4) EFFECTIVE DATE.—This subsection shall apply with re- spect to schools and libraries on or after the date that is 120 days after the date of the enactment of the Children’s Internet Protection Act.

SEC. 255. ø47 U.S.C. 255¿ ACCESS BY PERSONS WITH DISABILITIES. (a) DEFINITIONS.—As used in this section—

(1) DISABILITY.—The term ‘‘disability’’ has the meaning given to it by section 3(2)(A) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102(2)(A)).

(2) READILY ACHIEVABLE.—The term ‘‘readily achievable’’ has the meaning given to it by section 301(9) of that Act (42 U.S.C. 12181(9)). (b) MANUFACTURING.—A manufacturer of telecommunications

equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable.

(c) TELECOMMUNICATIONS SERVICES.—A provider of tele- communications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.

(d) COMPATIBILITY.—Whenever the requirements of subsections (b) and (c) are not readily achievable, such a manufacturer or pro- vider shall ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equip- ment commonly used by individuals with disabilities to achieve ac- cess, if readily achievable.

(e) GUIDELINES.—Within 18 months after the date of enact- ment of the Telecommunications Act of 1996, the Architectural and Transportation Barriers Compliance Board shall develop guidelines for accessibility of telecommunications equipment and customer premises equipment in conjunction with the Commission. The Board shall review and update the guidelines periodically.

(f) NO ADDITIONAL PRIVATE RIGHTS AUTHORIZED.—Nothing in this section shall be construed to authorize any private right of ac- tion to enforce any requirement of this section or any regulation thereunder. The Commission shall have exclusive jurisdiction with respect to any complaint under this section. SEC. 256. ø47 U.S.C. 256¿ COORDINATION FOR INTERCONNECTIVITY.

(a) PURPOSE.—It is the purpose of this section— (1) to promote nondiscriminatory accessibility by the

broadest number of users and vendors of communications prod- ucts and services to public telecommunications networks used to provide telecommunications service through—

(A) coordinated public telecommunications network planning and design by telecommunications carriers and other providers of telecommunications service; and

(B) public telecommunications network interconnectivity, and interconnectivity of devices with such networks used to provide telecommunications service; and (2) to ensure the ability of users and information providers

to seamlessly and transparently transmit and receive informa- tion between and across telecommunications networks.

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(b) COMMISSION FUNCTIONS.—In carrying out the purposes of this section, the Commission—

(1) shall establish procedures for Commission oversight of coordinated network planning by telecommunications carriers and other providers of telecommunications service for the effec- tive and efficient interconnection of public telecommunications networks used to provide telecommunications service; and

(2) may participate, in a manner consistent with its au- thority and practice prior to the date of enactment of this sec- tion, in the development by appropriate industry standards- setting organizations of public telecommunications network interconnectivity standards that promote access to—

(A) public telecommunications networks used to pro- vide telecommunications service;

(B) network capabilities and services by individuals with disabilities; and

(c) COMMISSION’S AUTHORITY.—Nothing in this section shall be construed as expanding or limiting any authority that the Commis- sion may have under law in effect before the date of enactment of the Telecommunications Act of 1996.

(d) DEFINITION.—As used in this section, the term ‘‘public tele- communications network interconnectivity’’ means the ability of two or more public telecommunications networks used to provide telecommunications service to communicate and exchange informa- tion without degeneration, and to interact in concert with one an- other. SEC. 257. ø47 U.S.C. 257¿ MARKET ENTRY BARRIERS PROCEEDING.

(a) ELIMINATION OF BARRIERS.—Within 15 months after the date of enactment of the Telecommunications Act of 1996, the Com- mission shall complete a proceeding for the purpose of identifying and eliminating, by regulations pursuant to its authority under this Act (other than this section), market entry barriers for entre- preneurs and other small businesses in the provision and owner- ship of telecommunications services and information services, or in the provision of parts or services to providers of telecommuni- cations services and information services.

(b) NATIONAL POLICY.—In carrying out subsection (a), the Com- mission shall seek to promote the policies and purposes of this Act favoring diversity of media voices, vigorous economic competition, technological advancement, and promotion of the public interest, convenience, and necessity.

(c) PERIODIC REVIEW.—Every 3 years following the completion of the proceeding required by subsection (a), the Commission shall review and report to Congress on—

(1) any regulations prescribed to eliminate barriers within its jurisdiction that are identified under subsection (a) and that can be prescribed consistent with the public interest, conven- ience, and necessity; and

(2) the statutory barriers identified under subsection (a) that the Commission recommends be eliminated, consistent with the public interest, convenience, and necessity.

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SEC. 258. ø47 U.S.C. 258¿ ILLEGAL CHANGES IN SUBSCRIBER CARRIER SELECTIONS.

(a) PROHIBITION.—No telecommunications carrier shall submit or execute a change in a subscriber’s selection of a provider of tele- phone exchange service or telephone toll service except in accord- ance with such verification procedures as the Commission shall prescribe. Nothing in this section shall preclude any State commis- sion from enforcing such procedures with respect to intrastate serv- ices.

(b) LIABILITY FOR CHARGES.—Any telecommunications carrier that violates the verification procedures described in subsection (a) and that collects charges for telephone exchange service or tele- phone toll service from a subscriber shall be liable to the carrier previously selected by the subscriber in an amount equal to all charges paid by such subscriber after such violation, in accordance with such procedures as the Commission may prescribe. The rem- edies provided by this subsection are in addition to any other rem- edies available by law. SEC. 259. ø47 U.S.C. 259¿ INFRASTRUCTURE SHARING.

(a) REGULATIONS REQUIRED.—The Commission shall prescribe, within one year after the date of enactment of the Telecommuni- cations Act of 1996, regulations that require incumbent local ex- change carriers (as defined in section 251(h)) to make available to any qualifying carrier such public switched network infrastructure, technology, information, and telecommunications facilities and functions as may be requested by such qualifying carrier for the purpose of enabling such qualifying carrier to provide telecommuni- cations services, or to provide access to information services, in the service area in which such qualifying carrier has requested and ob- tained designation as an eligible telecommunications carrier under section 214(e).

(b) TERMS AND CONDITIONS OF REGULATIONS.—The regulations prescribed by the Commission pursuant to this section shall—

(1) not require a local exchange carrier to which this sec- tion applies to take any action that is economically unreason- able or that is contrary to the public interest;

(2) permit, but shall not require, the joint ownership or op- eration of public switched network infrastructure and services by or among such local exchange carrier and a qualifying car- rier;

(3) ensure that such local exchange carrier will not be treated by the Commission or any State as a common carrier for hire or as offering common carrier services with respect to any infrastructure, technology, information, facilities, or func- tions made available to a qualifying carrier in accordance with regulations issued pursuant to this section;

(4) ensure that such local exchange carrier makes such in- frastructure, technology, information, facilities, or functions available to a qualifying carrier on just and reasonable terms and conditions that permit such qualifying carrier to fully ben- efit from the economies of scale and scope of such local ex- change carrier, as determined in accordance with guidelines prescribed by the Commission in regulations issued pursuant to this section;

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(5) establish conditions that promote cooperation between local exchange carriers to which this section applies and quali- fying carriers;

(6) not require a local exchange carrier to which this sec- tion applies to engage in any infrastructure sharing agreement for any services or access which are to be provided or offered to consumers by the qualifying carrier in such local exchange carrier’s telephone exchange area; and

(7) require that such local exchange carrier file with the Commission or State for public inspection, any tariffs, con- tracts, or other arrangements showing the rates, terms, and conditions under which such carrier is making available public switched network infrastructure and functions under this sec- tion. (c) INFORMATION CONCERNING DEPLOYMENT OF NEW SERVICES

AND EQUIPMENT.—A local exchange carrier to which this section applies that has entered into an infrastructure sharing agreement under this section shall provide to each party to such agreement timely information on the planned deployment of telecommuni- cations services and equipment, including any software or upgrades of software integral to the use or operation of such telecommuni- cations equipment.

(d) DEFINITION.—For purposes of this section, the term ‘‘quali- fying carrier’’ means a telecommunications carrier that—

(1) lacks economies of scale or scope, as determined in ac- cordance with regulations prescribed by the Commission pur- suant to this section; and

(2) offers telephone exchange service, exchange access, and any other service that is included in universal service, to all consumers without preference throughout the service area for which such carrier has been designated as an eligible tele- communications carrier under section 214(e).

SEC. 260. ø47 U.S.C. 260¿ PROVISION OF TELEMESSAGING SERVICE. (a) NONDISCRIMINATION SAFEGUARDS.—Any local exchange car-

rier subject to the requirements of section 251(c) that provides tele- messaging service—

(1) shall not subsidize its telemessaging service directly or indirectly from its telephone exchange service or its exchange access; and

(2) shall not prefer or discriminate in favor of its telemes- saging service operations in its provision of telecommuni- cations services. (b) EXPEDITED CONSIDERATION OF COMPLAINTS.—The Commis-

sion shall establish procedures for the receipt and review of com- plaints concerning violations of subsection (a) or the regulations thereunder that result in material financial harm to a provider of telemessaging service. Such procedures shall ensure that the Com- mission will make a final determination with respect to any such complaint within 120 days after receipt of the complaint. If the complaint contains an appropriate showing that the alleged viola- tion occurred, the Commission shall, within 60 days after receipt of the complaint, order the local exchange carrier and any affiliates

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to cease engaging in such violation pending such final determina- tion.

(c) DEFINITION.—As used in this section, the term ‘‘telemes- saging service’’ means voice mail and voice storage and retrieval services, any live operator services used to record, transcribe, or relay messages (other than telecommunications relay services), and any ancillary services offered in combination with these services. SEC. 261. ø47 U.S.C. 261¿ EFFECT ON OTHER REQUIREMENTS.

(a) COMMISSION REGULATIONS.—Nothing in this part shall be construed to prohibit the Commission from enforcing regulations prescribed prior to the date of enactment of the Telecommuni- cations Act of 1996 in fulfilling the requirements of this part, to the extent that such regulations are not inconsistent with the provi- sions of this part.

(b) EXISTING STATE REGULATIONS.—Nothing in this part shall be construed to prohibit any State commission from enforcing regu- lations prescribed prior to the date of enactment of the Tele- communications Act of 1996, or from prescribing regulations after such date of enactment, in fulfilling the requirements of this part, if such regulations are not inconsistent with the provisions of this part.

(c) ADDITIONAL STATE REQUIREMENTS.—Nothing in this part precludes a State from imposing requirements on a telecommuni- cations carrier for intrastate services that are necessary to further competition in the provision of telephone exchange service or ex- change access, as long as the State’s requirements are not incon- sistent with this part or the Commission’s regulations to imple- ment this part.

PART III—SPECIAL PROVISIONS CONCERNING BELL OPERATING COMPANIES

SEC. 271. ø47 U.S.C. 271¿ BELL OPERATING COMPANY ENTRY INTO INTERLATA SERVICES.

(a) GENERAL LIMITATION.—Neither a Bell operating company, nor any affiliate of a Bell operating company, may provide interLATA services except as provided in this section.

(b) INTERLATA SERVICES TO WHICH THIS SECTION APPLIES.— (1) IN-REGION SERVICES.—A Bell operating company, or

any affiliate of that Bell operating company, may provide interLATA services originating in any of its in-region States (as defined in subsection (i)) if the Commission approves the application of such company for such State under subsection (d)(3).

(2) OUT-OF-REGION SERVICES.—A Bell operating company, or any affiliate of that Bell operating company, may provide interLATA services originating outside its in-region States after the date of enactment of the Telecommunications Act of 1996, subject to subsection (j).

(3) INCIDENTAL INTERLATA SERVICES.—A Bell operating company, or any affiliate of a Bell operating company, may provide incidental interLATA services (as defined in subsection

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128Sec. 271 COMMUNICATIONS ACT OF 1934

(g)) originating in any State after the date of enactment of the Telecommunications Act of 1996.

(4) TERMINATION.—Nothing in this section prohibits a Bell operating company or any of its affiliates from providing termi- nation for interLATA services, subject to subsection (j). (c) REQUIREMENTS FOR PROVIDING CERTAIN IN-REGION

INTERLATA SERVICES.— (1) AGREEMENT OR STATEMENT.—A Bell operating company

meets the requirements of this paragraph if it meets the re- quirements of subparagraph (A) or subparagraph (B) of this paragraph for each State for which the authorization is sought.

(A) PRESENCE OF A FACILITIES-BASED COMPETITOR.—A Bell operating company meets the requirements of this subparagraph if it has entered into one or more binding agreements that have been approved under section 252 specifying the terms and conditions under which the Bell operating company is providing access and interconnection to its network facilities for the network facilities of one or more unaffiliated competing providers of telephone ex- change service (as defined in section 3(47)(A), but exclud- ing exchange access) to residential and business sub- scribers. For the purpose of this subparagraph, such tele- phone exchange service may be offered by such competing providers either exclusively over their own telephone ex- change service facilities or predominantly over their own telephone exchange service facilities in combination with the resale of the telecommunications services of another carrier. For the purpose of this subparagraph, services pro- vided pursuant to subpart K of part 22 of the Commis- sion’s regulations (47 C.F.R. 22.901 et seq.) shall not be considered to be telephone exchange services.

(B) FAILURE TO REQUEST ACCESS.—A Bell operating company meets the requirements of this subparagraph if, after 10 months after the date of enactment of the Tele- communications Act of 1996, no such provider has re- quested the access and interconnection described in sub- paragraph (A) before the date which is 3 months before the date the company makes its application under subsection (d)(1), and a statement of the terms and conditions that the company generally offers to provide such access and interconnection has been approved or permitted to take ef- fect by the State commission under section 252(f). For pur- poses of this subparagraph, a Bell operating company shall be considered not to have received any request for access and interconnection if the State commission of such State certifies that the only provider or providers making such a request have (i) failed to negotiate in good faith as re- quired by section 252, or (ii) violated the terms of an agreement approved under section 252 by the provider’s failure to comply, within a reasonable period of time, with the implementation schedule contained in such agreement. (2) SPECIFIC INTERCONNECTION REQUIREMENTS.—

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129 Sec. 271COMMUNICATIONS ACT OF 1934

(A) AGREEMENT REQUIRED.—A Bell operating company meets the requirements of this paragraph if, within the State for which the authorization is sought—

(i)(I) such company is providing access and inter- connection pursuant to one or more agreements de- scribed in paragraph (1)(A), or

(II) such company is generally offering access and interconnection pursuant to a statement described in paragraph (1)(B), and

(ii) such access and interconnection meets the re- quirements of subparagraph (B) of this paragraph. (B) COMPETITIVE CHECKLIST.—Access or interconnec-

tion provided or generally offered by a Bell operating com- pany to other telecommunications carriers meets the re- quirements of this subparagraph if such access and inter- connection includes each of the following:

(i) Interconnection in accordance with the require- ments of sections 251(c)(2) and 252(d)(1).

(ii) Nondiscriminatory access to network elements in accordance with the requirements of sections 251(c)(3) and 252(d)(1).

(iii) Nondiscriminatory access to the poles, ducts, conduits, and rights-of-way owned or controlled by the Bell operating company at just and reasonable rates in accordance with the requirements of section 224.

(iv) Local loop transmission from the central office to the customer’s premises, unbundled from local switching or other services.

(v) Local transport from the trunk side of a wireline local exchange carrier switch unbundled from switching or other services.

(vi) Local switching unbundled from transport, local loop transmission, or other services.

(vii) Nondiscriminatory access to— (I) 911 and E911 services; (II) directory assistance services to allow the

other carrier’s customers to obtain telephone num- bers; and

(III) operator call completion services. (viii) White pages directory listings for customers

of the other carrier’s telephone exchange service. (ix) Until the date by which telecommunications

numbering administration guidelines, plan, or rules are established, nondiscriminatory access to telephone numbers for assignment to the other carrier’s tele- phone exchange service customers. After that date, compliance with such guidelines, plan, or rules.

(x) Nondiscriminatory access to databases and as- sociated signaling necessary for call routing and com- pletion.

(xi) Until the date by which the Commission issues regulations pursuant to section 251 to require number portability, interim telecommunications num- ber portability through remote call forwarding, direct

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130Sec. 271 COMMUNICATIONS ACT OF 1934

inward dialing trunks, or other comparable arrange- ments, with as little impairment of functioning, qual- ity, reliability, and convenience as possible. After that date, full compliance with such regulations.

(xii) Nondiscriminatory access to such services or information as are necessary to allow the requesting carrier to implement local dialing parity in accordance with the requirements of section 251(b)(3).

(xiii) Reciprocal compensation arrangements in ac- cordance with the requirements of section 252(d)(2).

(xiv) Telecommunications services are available for resale in accordance with the requirements of sec- tions 251(c)(4) and 252(d)(3).

(d) ADMINISTRATIVE PROVISIONS.— (1) APPLICATION TO COMMISSION.—On and after the date of

enactment of the Telecommunications Act of 1996, a Bell oper- ating company or its affiliate may apply to the Commission for authorization to provide interLATA services originating in any in-region State. The application shall identify each State for which the authorization is sought.

(2) CONSULTATION.— (A) CONSULTATION WITH THE ATTORNEY GENERAL.—

The Commission shall notify the Attorney General prompt- ly of any application under paragraph (1). Before making any determination under this subsection, the Commission shall consult with the Attorney General, and if the Attor- ney General submits any comments in writing, such com- ments shall be included in the record of the Commission’s decision. In consulting with and submitting comments to the Commission under this paragraph, the Attorney Gen- eral shall provide to the Commission an evaluation of the application using any standard the Attorney General con- siders appropriate. The Commission shall give substantial weight to the Attorney General’s evaluation, but such eval- uation shall not have any preclusive effect on any Commis- sion decision under paragraph (3).

(B) CONSULTATION WITH STATE COMMISSIONS.—Before making any determination under this subsection, the Com- mission shall consult with the State commission of any State that is the subject of the application in order to verify the compliance of the Bell operating company with the requirements of subsection (c). (3) DETERMINATION.—Not later than 90 days after receiv-

ing an application under paragraph (1), the Commission shall issue a written determination approving or denying the author- ization requested in the application for each State. The Com- mission shall not approve the authorization requested in an application submitted under paragraph (1) unless it finds that—

(A) the petitioning Bell operating company has met the requirements of subsection (c)(1) and—

(i) with respect to access and interconnection pro- vided pursuant to subsection (c)(1)(A), has fully imple-

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mented the competitive checklist in subsection (c)(2)(B); or

(ii) with respect to access and interconnection gen- erally offered pursuant to a statement under sub- section (c)(1)(B), such statement offers all of the items included in the competitive checklist in subsection (c)(2)(B); (B) the requested authorization will be carried out in

accordance with the requirements of section 272; and (C) the requested authorization is consistent with the

public interest, convenience, and necessity. The Commission shall state the basis for its approval or denial of the application.

(4) LIMITATION ON COMMISSION.—The Commission may not, by rule or otherwise, limit or extend the terms used in the competitive checklist set forth in subsection (c)(2)(B).

(5) PUBLICATION.—Not later than 10 days after issuing a determination under paragraph (3), the Commission shall pub- lish in the Federal Register a brief description of the deter- mination.

(6) ENFORCEMENT OF CONDITIONS.— (A) COMMISSION AUTHORITY.—If at any time after the

approval of an application under paragraph (3), the Com- mission determines that a Bell operating company has ceased to meet any of the conditions required for such ap- proval, the Commission may, after notice and opportunity for a hearing—

(i) issue an order to such company to correct the deficiency;

(ii) impose a penalty on such company pursuant to title V; or

(iii) suspend or revoke such approval. (B) RECEIPT AND REVIEW OF COMPLAINTS.—The Com-

mission shall establish procedures for the review of com- plaints concerning failures by Bell operating companies to meet conditions required for approval under paragraph (3). Unless the parties otherwise agree, the Commission shall act on such complaint within 90 days.

(e) LIMITATIONS.— (1) JOINT MARKETING OF LOCAL AND LONG DISTANCE SERV-

ICES.—Until a Bell operating company is authorized pursuant to subsection (d) to provide interLATA services in an in-region State, or until 36 months have passed since the date of enact- ment of the Telecommunications Act of 1996, whichever is ear- lier, a telecommunications carrier that serves greater than 5 percent of the Nation’s presubscribed access lines may not jointly market in such State telephone exchange service ob- tained from such company pursuant to section 251(c)(4) with interLATA services offered by that telecommunications carrier.

(2) INTRALATA TOLL DIALING PARITY.— (A) PROVISION REQUIRED.—A Bell operating company

granted authority to provide interLATA services under subsection (d) shall provide intraLATA toll dialing parity

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throughout that State coincident with its exercise of that authority.

(B) LIMITATION.—Except for single-LATA States and States that have issued an order by December 19, 1995, re- quiring a Bell operating company to implement intraLATA toll dialing parity, a State may not require a Bell oper- ating company to implement intraLATA toll dialing parity in that State before a Bell operating company has been granted authority under this section to provide interLATA services originating in that State or before 3 years after the date of enactment of the Telecommunications Act of 1996, whichever is earlier. Nothing in this subparagraph precludes a State from issuing an order requiring intraLATA toll dialing parity in that State prior to either such date so long as such order does not take effect until after the earlier of either such dates.

(f) EXCEPTION FOR PREVIOUSLY AUTHORIZED ACTIVITIES.—Nei- ther subsection (a) nor section 273 shall prohibit a Bell operating company or affiliate from engaging, at any time after the date of enactment of the Telecommunications Act of 1996, in any activity to the extent authorized by, and subject to the terms and condi- tions contained in, an order entered by the United States District Court for the District of Columbia pursuant to section VII or VIII(C) of the AT&T Consent Decree if such order was entered on or before such date of enactment, to the extent such order is not reversed or vacated on appeal. Nothing in this subsection shall be construed to limit, or to impose terms or conditions on, an activity in which a Bell operating company is otherwise authorized to en- gage under any other provision of this section.

(g) DEFINITION OF INCIDENTAL INTERLATA SERVICES.—For purposes of this section, the term ‘‘incidental interLATA services’’ means the interLATA provision by a Bell operating company or its affiliate—

(1)(A) of audio programming, video programming, or other programming services to subscribers to such services of such company or affiliate;

(B) of the capability for interaction by such subscribers to select or respond to such audio programming, video program- ming, or other programming services;

(C) to distributors of audio programming or video program- ming that such company or affiliate owns or controls, or is li- censed by the copyright owner of such programming (or by an assignee of such owner) to distribute; or

(D) of alarm monitoring services; (2) of two-way interactive video services or Internet serv-

ices over dedicated facilities to or for elementary and secondary schools as defined in section 254(h)(5);

(3) of commercial mobile services in accordance with sec- tion 332(c) of this Act and with the regulations prescribed by the Commission pursuant to paragraph (8) of such section;

(4) of a service that permits a customer that is located in one LATA to retrieve stored information from, or file informa- tion for storage in, information storage facilities of such com- pany that are located in another LATA;

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133 Sec. 272COMMUNICATIONS ACT OF 1934

(5) of signaling information used in connection with the provision of telephone exchange services or exchange access by a local exchange carrier; or

(6) of network control signaling information to, and receipt of such signaling information from, common carriers offering interLATA services at any location within the area in which such Bell operating company provides telephone exchange services or exchange access. (h) LIMITATIONS.—The provisions of subsection (g) are intended

to be narrowly construed. The interLATA services provided under subparagraph (A), (B), or (C) of subsection (g)(1) are limited to those interLATA transmissions incidental to the provision by a Bell operating company or its affiliate of video, audio, and other pro- gramming services that the company or its affiliate is engaged in providing to the public. The Commission shall ensure that the pro- vision of services authorized under subsection (g) by a Bell oper- ating company or its affiliate will not adversely affect telephone ex- change service ratepayers or competition in any telecommuni- cations market.

(i) ADDITIONAL DEFINITIONS.—As used in this section— (1) IN-REGION STATE.—The term ‘‘in-region State’’ means a

State in which a Bell operating company or any of its affiliates was authorized to provide wireline telephone exchange service pursuant to the reorganization plan approved under the AT&T Consent Decree, as in effect on the day before the date of en- actment of the Telecommunications Act of 1996.

(2) AUDIO PROGRAMMING SERVICES.—The term ‘‘audio pro- gramming services’’ means programming provided by, or gen- erally considered to be comparable to programming provided by, a radio broadcast station.

(3) VIDEO PROGRAMMING SERVICES; OTHER PROGRAMMING SERVICES.—The terms ‘‘video programming service’’ and ‘‘other programming services’’ have the same meanings as such terms have under section 602 of this Act. (j) CERTAIN SERVICE APPLICATIONS TREATED AS IN-REGION

SERVICE APPLICATIONS.—For purposes of this section, a Bell oper- ating company application to provide 800 service, private line serv- ice, or their equivalents that—

(1) terminate in an in-region State of that Bell operating company, and

(2) allow the called party to determine the interLATA car- rier,

shall be considered an in-region service subject to the requirements of subsection (b)(1). SEC. 272. ø47 U.S.C. 272¿ SEPARATE AFFILIATE; SAFEGUARDS.

(a) SEPARATE AFFILIATE REQUIRED FOR COMPETITIVE ACTIVI- TIES.—

(1) IN GENERAL.—A Bell operating company (including any affiliate) which is a local exchange carrier that is subject to the requirements of section 251(c) may not provide any service de- scribed in paragraph (2) unless it provides that service through one or more affiliates that—

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134Sec. 272 COMMUNICATIONS ACT OF 1934

(A) are separate from any operating company entity that is subject to the requirements of section 251(c); and

(B) meet the requirements of subsection (b). (2) SERVICES FOR WHICH A SEPARATE AFFILIATE IS RE-

QUIRED.—The services for which a separate affiliate is required by paragraph (1) are:

(A) Manufacturing activities (as defined in section 273(h)).

(B) Origination of interLATA telecommunications serv- ices, other than—

(i) incidental interLATA services described in paragraphs (1), (2), (3), (5), and (6) of section 271(g);

(ii) out-of-region services described in section 271(b)(2); or

(iii) previously authorized activities described in section 271(f). (C) InterLATA information services, other than elec-

tronic publishing (as defined in section 274(h)) and alarm monitoring services (as defined in section 275(e)).

(b) STRUCTURAL AND TRANSACTIONAL REQUIREMENTS.—The separate affiliate required by this section—

(1) shall operate independently from the Bell operating company;

(2) shall maintain books, records, and accounts in the manner prescribed by the Commission which shall be separate from the books, records, and accounts maintained by the Bell operating company of which it is an affiliate;

(3) shall have separate officers, directors, and employees from the Bell operating company of which it is an affiliate;

(4) may not obtain credit under any arrangement that would permit a creditor, upon default, to have recourse to the assets of the Bell operating company; and

(5) shall conduct all transactions with the Bell operating company of which it is an affiliate on an arm’s length basis with any such transactions reduced to writing and available for public inspection.

(c) NONDISCRIMINATION SAFEGUARDS.—In its dealings with its af- filiate described in subsection (a), a Bell operating company—

(1) may not discriminate between that company or affiliate and any other entity in the provision or procurement of goods, services, facilities, and information, or in the establishment of standards; and

(2) shall account for all transactions with an affiliate de- scribed in subsection (a) in accordance with accounting prin- ciples designated or approved by the Commission. (d) BIENNIAL AUDIT.—

(1) GENERAL REQUIREMENT.—A company required to oper- ate a separate affiliate under this section shall obtain and pay for a joint Federal/State audit every 2 years conducted by an independent auditor to determine whether such company has complied with this section and the regulations promulgated under this section, and particularly whether such company has complied with the separate accounting requirements under subsection (b).

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135 Sec. 272COMMUNICATIONS ACT OF 1934

(2) RESULTS SUBMITTED TO COMMISSION; STATE COMMIS- SIONS.—The auditor described in paragraph (1) shall submit the results of the audit to the Commission and to the State commission of each State in which the company audited pro- vides service, which shall make such results available for pub- lic inspection. Any party may submit comments on the final audit report.

(3) ACCESS TO DOCUMENTS.—For purposes of conducting audits and reviews under this subsection—

(A) the independent auditor, the Commission, and the State commission shall have access to the financial ac- counts and records of each company and of its affiliates necessary to verify transactions conducted with that com- pany that are relevant to the specific activities permitted under this section and that are necessary for the regula- tion of rates;

(B) the Commission and the State commission shall have access to the working papers and supporting mate- rials of any auditor who performs an audit under this sec- tion; and

(C) the State commission shall implement appropriate procedures to ensure the protection of any proprietary in- formation submitted to it under this section.

(e) FULFILLMENT OF CERTAIN REQUESTS.—A Bell operating company and an affiliate that is subject to the requirements of sec- tion 251(c)—

(1) shall fulfill any requests from an unaffiliated entity for telephone exchange service and exchange access within a pe- riod no longer than the period in which it provides such tele- phone exchange service and exchange access to itself or to its affiliates;

(2) shall not provide any facilities, services, or information concerning its provision of exchange access to the affiliate de- scribed in subsection (a) unless such facilities, services, or in- formation are made available to other providers of interLATA services in that market on the same terms and conditions;

(3) shall charge the affiliate described in subsection (a), or impute to itself (if using the access for its provision of its own services), an amount for access to its telephone exchange serv- ice and exchange access that is no less than the amount charged to any unaffiliated interexchange carriers for such service; and

(4) may provide any interLATA or intraLATA facilities or services to its interLATA affiliate if such services or facilities are made available to all carriers at the same rates and on the same terms and conditions, and so long as the costs are appro- priately allocated. (f) SUNSET.—

(1) MANUFACTURING AND LONG DISTANCE.—The provisions of this section (other than subsection (e)) shall cease to apply with respect to the manufacturing activities or the interLATA telecommunications services of a Bell operating company 3 years after the date such Bell operating company or any Bell operating company affiliate is authorized to provide interLATA

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136Sec. 273 COMMUNICATIONS ACT OF 1934

telecommunications services under section 271(d), unless the Commission extends such 3-year period by rule or order.

(2) INTERLATA INFORMATION SERVICES.—The provisions of this section (other than subsection (e)) shall cease to apply with respect to the interLATA information services of a Bell operating company 4 years after the date of enactment of the Telecommunications Act of 1996, unless the Commission ex- tends such 4-year period by rule or order.

(3) PRESERVATION OF EXISTING AUTHORITY.—Nothing in this subsection shall be construed to limit the authority of the Commission under any other section of this Act to prescribe safeguards consistent with the public interest, convenience, and necessity. (g) JOINT MARKETING.—

(1) AFFILIATE SALES OF TELEPHONE EXCHANGE SERVICES.— A Bell operating company affiliate required by this section may not market or sell telephone exchange services provided by the Bell operating company unless that company permits other en- tities offering the same or similar service to market and sell its telephone exchange services.

(2) BELL OPERATING COMPANY SALES OF AFFILIATE SERV- ICES.—A Bell operating company may not market or sell interLATA service provided by an affiliate required by this sec- tion within any of its in-region States until such company is authorized to provide interLATA services in such State under section 271(d).

(3) RULE OF CONSTRUCTION.—The joint marketing and sale of services permitted under this subsection shall not be consid- ered to violate the nondiscrimination provisions of subsection (c). (h) TRANSITION.—With respect to any activity in which a Bell

operating company is engaged on the date of enactment of the Tele- communications Act of 1996, such company shall have one year from such date of enactment to comply with the requirements of this section. SEC. 273. ø47 U.S.C. 273¿ MANUFACTURING BY BELL OPERATING

COMPANIES. (a) AUTHORIZATION.—A Bell operating company may manufac-

ture and provide telecommunications equipment, and manufacture customer premises equipment, if the Commission authorizes that Bell operating company or any Bell operating company affiliate to provide interLATA services under section 271(d), subject to the re- quirements of this section and the regulations prescribed there- under, except that neither a Bell operating company nor any of its affiliates may engage in such manufacturing in conjunction with a Bell operating company not so affiliated or any of its affiliates.

(b) COLLABORATION; RESEARCH AND ROYALTY AGREEMENTS.— (1) COLLABORATION.—Subsection (a) shall not prohibit a

Bell operating company from engaging in close collaboration with any manufacturer of customer premises equipment or telecommunications equipment during the design and develop- ment of hardware, software, or combinations thereof related to such equipment.

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137 Sec. 273COMMUNICATIONS ACT OF 1934

(2) CERTAIN RESEARCH ARRANGEMENTS; ROYALTY AGREE- MENTS.—Subsection (a) shall not prohibit a Bell operating com- pany from—

(A) engaging in research activities related to manufac- turing, and

(B) entering into royalty agreements with manufactur- ers of telecommunications equipment.

MENTS.—Each Bell operating company shall, in accordance with regulations prescribed by the Commission, maintain and file with the Commission full and complete information with respect to the protocols and technical requirements for connec- tion with and use of its telephone exchange service facilities. Each such company shall report promptly to the Commission any material changes or planned changes to such protocols and requirements, and the schedule for implementation of such changes or planned changes.

(2) DISCLOSURE OF INFORMATION.—A Bell operating com- pany shall not disclose any information required to be filed under paragraph (1) unless that information has been filed promptly, as required by regulation by the Commission.

(3) ACCESS BY COMPETITORS TO INFORMATION.—The Com- mission may prescribe such additional regulations under this subsection as may be necessary to ensure that manufacturers have access to the information with respect to the protocols and technical requirements for connection with and use of tele- phone exchange service facilities that a Bell operating company makes available to any manufacturing affiliate or any unaffili- ated manufacturer.

(4) PLANNING INFORMATION.—Each Bell operating company shall provide, to interconnecting carriers providing telephone exchange service, timely information on the planned deploy- ment of telecommunications equipment. (d) MANUFACTURING LIMITATIONS FOR STANDARD-SETTING OR-

GANIZATIONS.— (1) APPLICATION TO BELL COMMUNICATIONS RESEARCH OR

MANUFACTURERS.—Bell Communications Research, Inc., or any successor entity or affiliate—

(A) shall not be considered a Bell operating company or a successor or assign of a Bell operating company at such time as it is no longer an affiliate of any Bell oper- ating company; and

(B) notwithstanding paragraph (3), shall not engage in manufacturing telecommunications equipment or customer premises equipment as long as it is an affiliate of more than 1 otherwise unaffiliated Bell operating company or successor or assign of any such company.

Nothing in this subsection prohibits Bell Communications Re- search, Inc., or any successor entity, from engaging in any ac- tivity in which it is lawfully engaged on the date of enactment of the Telecommunications Act of 1996. Nothing provided in this subsection shall render Bell Communications Research, Inc., or any successor entity, a common carrier under title II

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138Sec. 273 COMMUNICATIONS ACT OF 1934

of this Act. Nothing in this subsection restricts any manufac- turer from engaging in any activity in which it is lawfully en- gaged on the date of enactment of the Telecommunications Act of 1996.

(2) PROPRIETARY INFORMATION.—Any entity which estab- lishes standards for telecommunications equipment or cus- tomer premises equipment, or generic network requirements for such equipment, or certifies telecommunications equipment or customer premises equipment, shall be prohibited from re- leasing or otherwise using any proprietary information, des- ignated as such by its owner, in its possession as a result of such activity, for any purpose other than purposes authorized in writing by the owner of such information, even after such entity ceases to be so engaged.

(3) MANUFACTURING SAFEGUARDS.—(A) Except as prohib- ited in paragraph (1), and subject to paragraph (6), any entity which certifies telecommunications equipment or customer premises equipment manufactured by an unaffiliated entity shall only manufacture a particular class of telecommuni- cations equipment or customer premises equipment for which it is undertaking or has undertaken, during the previous 18 months, certification activity for such class of equipment through a separate affiliate.

(B) Such separate affiliate shall— (i) maintain books, records, and accounts separate

from those of the entity that certifies such equipment, con- sistent with generally acceptable accounting principles;

(ii) not engage in any joint manufacturing activities with such entity; and

(iii) have segregated facilities and separate employees with such entity. (C) Such entity that certifies such equipment shall—

(i) not discriminate in favor of its manufacturing affil- iate in the establishment of standards, generic require- ments, or product certification;

(ii) not disclose to the manufacturing affiliate any pro- prietary information that has been received at any time from an unaffiliated manufacturer, unless authorized in writing by the owner of the information; and

(iii) not permit any employee engaged in product cer- tification for telecommunications equipment or customer premises equipment to engage jointly in sales or mar- keting of any such equipment with the affiliated manufac- turer. (4) STANDARD-SETTING ENTITIES.—Any entity that is not an

accredited standards development organization and that estab- lishes industry-wide standards for telecommunications equip- ment or customer premises equipment, or industry-wide ge- neric network requirements for such equipment, or that cer- tifies telecommunications equipment or customer premises equipment manufactured by an unaffiliated entity, shall—

(A) establish and publish any industry-wide standard for, industry-wide generic requirement for, or any substan- tial modification of an existing industry-wide standard or

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139 Sec. 273COMMUNICATIONS ACT OF 1934

industry-wide generic requirement for, telecommunications equipment or customer premises equipment only in compli- ance with the following procedure—

(i) such entity shall issue a public notice of its con- sideration of a proposed industry-wide standard or in- dustry-wide generic requirement;

(ii) such entity shall issue a public invitation to in- terested industry parties to fund and participate in such efforts on a reasonable and nondiscriminatory basis, administered in such a manner as not to unrea- sonably exclude any interested industry party;

(iii) such entity shall publish a text for comment by such parties as have agreed to participate in the process pursuant to clause (ii), provide such parties a full opportunity to submit comments, and respond to comments from such parties;

(iv) such entity shall publish a final text of the in- dustry-wide standard or industry-wide generic require- ment, including the comments in their entirety, of any funding party which requests to have its comments so published; and

(v) such entity shall attempt, prior to publishing a text for comment, to agree with the funding parties as a group on a mutually satisfactory dispute resolu- tion process which such parties shall utilize as their sole recourse in the event of a dispute on technical issues as to which there is disagreement between any funding party and the entity conducting such activi- ties, except that if no dispute resolution process is agreed to by all the parties, a funding party may uti- lize the dispute resolution procedures established pur- suant to paragraph (5) of this subsection; (B) engage in product certification for telecommuni-

cations equipment or customer premises equipment manu- factured by unaffiliated entities only if—

(i) such activity is performed pursuant to pub- lished criteria;

(ii) such activity is performed pursuant to auditable criteria; and

(iii) such activity is performed pursuant to avail- able industry-accepted testing methods and standards, where applicable, unless otherwise agreed upon by the parties funding and performing such activity; (C) not undertake any actions to monopolize or at-

tempt to monopolize the market for such services; and (D) not preferentially treat its own telecommuni-

cations equipment or customer premises equipment, or that of its affiliate, over that of any other entity in estab- lishing and publishing industry-wide standards or indus- try-wide generic requirements for, and in certification of, telecommunications equipment and customer premises equipment. (5) ALTERNATE DISPUTE RESOLUTION.—Within 90 days

after the date of enactment of the Telecommunications Act of

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140Sec. 273 COMMUNICATIONS ACT OF 1934

1996, the Commission shall prescribe a dispute resolution proc- ess to be utilized in the event that a dispute resolution process is not agreed upon by all the parties when establishing and publishing any industry-wide standard or industry-wide ge- neric requirement for telecommunications equipment or cus- tomer premises equipment, pursuant to paragraph (4)(A)(v). The Commission shall not establish itself as a party to the dis- pute resolution process. Such dispute resolution process shall permit any funding party to resolve a dispute with the entity conducting the activity that significantly affects such funding party’s interests, in an open, nondiscriminatory, and unbiased fashion, within 30 days after the filing of such dispute. Such disputes may be filed within 15 days after the date the funding party receives a response to its comments from the entity con- ducting the activity. The Commission shall establish penalties to be assessed for delays caused by referral of frivolous dis- putes to the dispute resolution process.

(6) SUNSET.—The requirements of paragraphs (3) and (4) shall terminate for the particular relevant activity when the Commission determines that there are alternative sources of industry-wide standards, industry-wide generic requirements, or product certification for a particular class of telecommuni- cations equipment or customer premises equipment available in the United States. Alternative sources shall be deemed to exist when such sources provide commercially viable alter- natives that are providing such services to customers. The Commission shall act on any application for such a determina- tion within 90 days after receipt of such application, and shall receive public comment on such application.

(7) ADMINISTRATION AND ENFORCEMENT AUTHORITY.—For the purposes of administering this subsection and the regula- tions prescribed thereunder, the Commission shall have the same remedial authority as the Commission has in admin- istering and enforcing the provisions of this title with respect to any common carrier subject to this Act.

(8) DEFINITIONS.—For purposes of this subsection: (A) The term ‘‘affiliate’’ shall have the same meaning

as in section 3 of this Act, except that, for purposes of paragraph (1)(B)—

(i) an aggregate voting equity interest in Bell Communications Research, Inc., of at least 5 percent of its total voting equity, owned directly or indirectly by more than 1 otherwise unaffiliated Bell operating company, shall constitute an affiliate relationship; and

(ii) a voting equity interest in Bell Communica- tions Research, Inc., by any otherwise unaffiliated Bell operating company of less than 1 percent of Bell Com- munications Research’s total voting equity shall not be considered to be an equity interest under this para- graph. (B) The term ‘‘generic requirement’’ means a descrip-

tion of acceptable product attributes for use by local ex- change carriers in establishing product specifications for

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141 Sec. 273COMMUNICATIONS ACT OF 1934

the purchase of telecommunications equipment, customer premises equipment, and software integral thereto.

(C) The term ‘‘industry-wide’’ means activities funded by or performed on behalf of local exchange carriers for use in providing wireline telephone exchange service whose combined total of deployed access lines in the United States constitutes at least 30 percent of all access lines de- ployed by telecommunications carriers in the United States as of the date of enactment of the Telecommuni- cations Act of 1996.

(D) The term ‘‘certification’’ means any technical proc- ess whereby a party determines whether a product, for use by more than one local exchange carrier, conforms with the specified requirements pertaining to such product.

(E) The term ‘‘accredited standards development orga- nization’’ means an entity composed of industry members which has been accredited by an institution vested with the responsibility for standards accreditation by the indus- try.

(e) BELL OPERATING COMPANY EQUIPMENT PROCUREMENT AND SALES.—

(1) NONDISCRIMINATION STANDARDS FOR MANUFAC- TURING.—In the procurement or awarding of supply contracts for telecommunications equipment, a Bell operating company, or any entity acting on its behalf, for the duration of the re- quirement for a separate subsidiary including manufacturing under this Act—

(A) shall consider such equipment, produced or sup- plied by unrelated persons; and

(B) may not discriminate in favor of equipment pro- duced or supplied by an affiliate or related person. (2) PROCUREMENT STANDARDS.—Each Bell operating com-

pany or any entity acting on its behalf shall make procurement decisions and award all supply contracts for equipment, serv- ices, and software on the basis of an objective assessment of price, quality, delivery, and other commercial factors.

(3) NETWORK PLANNING AND DESIGN.—A Bell operating company shall, to the extent consistent with the antitrust laws, engage in joint network planning and design with local ex- change carriers operating in the same area of interest. No par- ticipant in such planning shall be allowed to delay the intro- duction of new technology or the deployment of facilities to pro- vide telecommunications services, and agreement with such other carriers shall not be required as a prerequisite for such introduction or deployment.

(4) SALES RESTRICTIONS.—Neither a Bell operating com- pany engaged in manufacturing nor a manufacturing affiliate of such a company shall restrict sales to any local exchange carrier of telecommunications equipment, including software integral to the operation of such equipment and related up- grades.

(5) PROTECTION OF PROPRIETARY INFORMATION.—A Bell op- erating company and any entity it owns or otherwise controls shall protect the proprietary information submitted for pro-

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142Sec. 274 COMMUNICATIONS ACT OF 1934

curement decisions from release not specifically authorized by the owner of such information. (f) ADMINISTRATION AND ENFORCEMENT AUTHORITY.—For the

purposes of administering and enforcing the provisions of this sec- tion and the regulations prescribed thereunder, the Commission shall have the same authority, power, and functions with respect to any Bell operating company or any affiliate thereof as the Com- mission has in administering and enforcing the provisions of this title with respect to any common carrier subject to this Act.

(g) ADDITIONAL RULES AND REGULATIONS.—The Commission may prescribe such additional rules and regulations as the Com- mission determines are necessary to carry out the provisions of this section, and otherwise to prevent discrimination and cross-sub- sidization in a Bell operating company’s dealings with its affiliate and with third parties.

(h) DEFINITION.—As used in this section, the term ‘‘manufac- turing’’ has the same meaning as such term has under the AT&T Consent Decree. SEC. 274. ø47 U.S.C. 274¿ ELECTRONIC PUBLISHING BY BELL OPER-

ATING COMPANIES. (a) LIMITATIONS.—No Bell operating company or any affiliate

may engage in the provision of electronic publishing that is dis- seminated by means of such Bell operating company’s or any of its affiliates’ basic telephone service, except that nothing in this sec- tion shall prohibit a separated affiliate or electronic publishing joint venture operated in accordance with this section from engag- ing in the provision of electronic publishing.

(b) SEPARATED AFFILIATE OR ELECTRONIC PUBLISHING JOINT VENTURE REQUIREMENTS.—A separated affiliate or electronic pub- lishing joint venture shall be operated independently from the Bell operating company. Such separated affiliate or joint venture and the Bell operating company with which it is affiliated shall—

(1) maintain separate books, records, and accounts and prepare separate financial statements;

(2) not incur debt in a manner that would permit a cred- itor of the separated affiliate or joint venture upon default to have recourse to the assets of the Bell operating company;

(3) carry out transactions (A) in a manner consistent with such independence, (B) pursuant to written contracts or tariffs that are filed with the Commission and made publicly avail- able, and (C) in a manner that is auditable in accordance with generally accepted auditing standards;

(4) value any assets that are transferred directly or indi- rectly from the Bell operating company to a separated affiliate or joint venture, and record any transactions by which such as- sets are transferred, in accordance with such regulations as may be prescribed by the Commission or a State commission to prevent improper cross subsidies;

(5) between a separated affiliate and a Bell operating com- pany—

(A) have no officers, directors, and employees in com- mon after the effective date of this section; and

(B) own no property in common;

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(6) not use for the marketing of any product or service of the separated affiliate or joint venture, the name, trademarks, or service marks of an existing Bell operating company except for names, trademarks, or service marks that are owned by the entity that owns or controls the Bell operating company;

(7) not permit the Bell operating company— (A) to perform hiring or training of personnel on be-

half of a separated affiliate; (B) to perform the purchasing, installation, or mainte-

nance of equipment on behalf of a separated affiliate, ex- cept for telephone service that it provides under tariff or contract subject to the provisions of this section; or

(C) to perform research and development on behalf of a separated affiliate; (8) each have performed annually a compliance review—

(A) that is conducted by an independent entity for the purpose of determining compliance during the preceding calendar year with any provision of this section; and

(B) the results of which are maintained by the sepa- rated affiliate or joint venture and the Bell operating com- pany for a period of 5 years subject to review by any lawful authority; and (9) within 90 days of receiving a review described in para-

graph (8), file a report of any exceptions and corrective action with the Commission and allow any person to inspect and copy such report subject to reasonable safeguards to protect any proprietary information contained in such report from being used for purposes other than to enforce or pursue remedies under this section. (c) JOINT MARKETING.—

(1) IN GENERAL.—Except as provided in paragraph (2)— (A) a Bell operating company shall not carry out any

promotion, marketing, sales, or advertising for or in con- junction with a separated affiliate; and

(B) a Bell operating company shall not carry out any promotion, marketing, sales, or advertising for or in con- junction with an affiliate that is related to the provision of electronic publishing. (2) PERMISSIBLE JOINT ACTIVITIES.—

(A) JOINT TELEMARKETING.—A Bell operating company may provide inbound telemarketing or referral services re- lated to the provision of electronic publishing for a sepa- rated affiliate, electronic publishing joint venture, affiliate, or unaffiliated electronic publisher: Provided, That if such services are provided to a separated affiliate, electronic publishing joint venture, or affiliate, such services shall be made available to all electronic publishers on request, on nondiscriminatory terms.

(B) TEAMING ARRANGEMENTS.—A Bell operating com- pany may engage in nondiscriminatory teaming or busi- ness arrangements to engage in electronic publishing with any separated affiliate or with any other electronic pub- lisher if (i) the Bell operating company only provides facili- ties, services, and basic telephone service information as

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authorized by this section, and (ii) the Bell operating com- pany does not own such teaming or business arrangement.

(C) ELECTRONIC PUBLISHING JOINT VENTURES.—A Bell operating company or affiliate may participate on a non- exclusive basis in electronic publishing joint ventures with entities that are not a Bell operating company, affiliate, or separated affiliate to provide electronic publishing services, if the Bell operating company or affiliate has not more than a 50 percent direct or indirect equity interest (or the equivalent thereof) or the right to more than 50 percent of the gross revenues under a revenue sharing or royalty agreement in any electronic publishing joint venture. Offi- cers and employees of a Bell operating company or affiliate participating in an electronic publishing joint venture may not have more than 50 percent of the voting control over the electronic publishing joint venture. In the case of joint ventures with small, local electronic publishers, the Com- mission for good cause shown may authorize the Bell oper- ating company or affiliate to have a larger equity interest, revenue share, or voting control but not to exceed 80 per- cent. A Bell operating company participating in an elec- tronic publishing joint venture may provide promotion, marketing, sales, or advertising personnel and services to such joint venture.

(d) BELL OPERATING COMPANY REQUIREMENT.—A Bell oper- ating company under common ownership or control with a sepa- rated affiliate or electronic publishing joint venture shall provide network access and interconnections for basic telephone service to electronic publishers at just and reasonable rates that are tariffed (so long as rates for such services are subject to regulation) and that are not higher on a per-unit basis than those charged for such services to any other electronic publisher or any separated affiliate engaged in electronic publishing.

(e) PRIVATE RIGHT OF ACTION.— (1) DAMAGES.—Any person claiming that any act or prac-

tice of any Bell operating company, affiliate, or separated affil- iate constitutes a violation of this section may file a complaint with the Commission or bring suit as provided in section 207 of this Act, and such Bell operating company, affiliate, or sepa- rated affiliate shall be liable as provided in section 206 of this Act; except that damages may not be awarded for a violation that is discovered by a compliance review as required by sub- section (b)(7) of this section and corrected within 90 days.

(2) CEASE AND DESIST ORDERS.—In addition to the provi- sions of paragraph (1), any person claiming that any act or practice of any Bell operating company, affiliate, or separated affiliate constitutes a violation of this section may make appli- cation to the Commission for an order to cease and desist such violation or may make application in any district court of the United States of competent jurisdiction for an order enjoining such acts or practices or for an order compelling compliance with such requirement. (f) SEPARATED AFFILIATE REPORTING REQUIREMENT.—Any sep-

arated affiliate under this section shall file with the Commission

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145 Sec. 274COMMUNICATIONS ACT OF 1934

annual reports in a form substantially equivalent to the Form 10– K required by regulations of the Securities and Exchange Commis- sion.

(g) EFFECTIVE DATES.— (1) TRANSITION.—Any electronic publishing service being

offered to the public by a Bell operating company or affiliate on the date of enactment of the Telecommunications Act of 1996 shall have one year from such date of enactment to com- ply with the requirements of this section.

(2) SUNSET.—The provisions of this section shall not apply to conduct occurring after 4 years after the date of enactment of the Telecommunications Act of 1996. (h) DEFINITION OF ELECTRONIC PUBLISHING.—

(1) IN GENERAL.—The term ‘‘electronic publishing’’ means the dissemination, provision, publication, or sale to an unaffili- ated entity or person, of any one or more of the following: news (including sports); entertainment (other than interactive games); business, financial, legal, consumer, or credit mate- rials; editorials, columns, or features; advertising; photos or images; archival or research material; legal notices or public records; scientific, educational, instructional, technical, profes- sional, trade, or other literary materials; or other like or simi- lar information.

(2) EXCEPTIONS.—The term ‘‘electronic publishing’’ shall not include the following services:

(A) Information access, as that term is defined by the AT&T Consent Decree.

(B) The transmission of information as a common carrier.

(C) The transmission of information as part of a gate- way to an information service that does not involve the generation or alteration of the content of information, in- cluding data transmission, address translation, protocol conversion, billing management, introductory information content, and navigational systems that enable users to ac- cess electronic publishing services, which do not affect the presentation of such electronic publishing services to users.

(D) Voice storage and retrieval services, including voice messaging and electronic mail services.

(E) Data processing or transaction processing services that do not involve the generation or alteration of the con- tent of information.

(F) Electronic billing or advertising of a Bell operating company’s regulated telecommunications services.

(G) Language translation or data format conversion. (H) The provision of information necessary for the

management, control, or operation of a telephone company telecommunications system.

(I) The provision of directory assistance that provides names, addresses, and telephone numbers and does not in- clude advertising.

(J) Caller identification services.

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146Sec. 274 COMMUNICATIONS ACT OF 1934

(K) Repair and provisioning databases and credit card and billing validation for telephone company operations.

(L) 911–E and other emergency assistance databases. (M) Any other network service of a type that is like or

similar to these network services and that does not involve the generation or alteration of the content of information.

(N) Any upgrades to these network services that do not involve the generation or alteration of the content of information.

(O) Video programming or full motion video entertain- ment on demand.

(i) ADDITIONAL DEFINITIONS.—As used in this section— (1) The term ‘‘affiliate’’ means any entity that, directly or

indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, a Bell operating company. Such term shall not include a separated affiliate.

(2) The term ‘‘basic telephone service’’ means any wireline telephone exchange service, or wireline telephone exchange service facility, provided by a Bell operating company in a tele- phone exchange area, except that such term does not include—

(A) a competitive wireline telephone exchange service provided in a telephone exchange area where another enti- ty provides a wireline telephone exchange service that was provided on January 1, 1984, or

(B) a commercial mobile service. (3) The term ‘‘basic telephone service information’’ means

network and customer information of a Bell operating company and other information acquired by a Bell operating company as a result of its engaging in the provision of basic telephone service.

(4) The term ‘‘control’’ has the meaning that it has in 17 C.F.R. 240.12b–2, the regulations promulgated by the Securi- ties and Exchange Commission pursuant to the Securities Ex- change Act of 1934 (15 U.S.C. 78a et seq.) or any successor pro- vision to such section.

(5) The term ‘‘electronic publishing joint venture’’ means a joint venture owned by a Bell operating company or affiliate that engages in the provision of electronic publishing which is disseminated by means of such Bell operating company’s or any of its affiliates’ basic telephone service.

(6) The term ‘‘entity’’ means any organization, and in- cludes corporations, partnerships, sole proprietorships, associa- tions, and joint ventures.

(7) The term ‘‘inbound telemarketing’’ means the mar- keting of property, goods, or services by telephone to a cus- tomer or potential customer who initiated the call.

(8) The term ‘‘own’’ with respect to an entity means to have a direct or indirect equity interest (or the equivalent thereof) of more than 10 percent of an entity, or the right to more than 10 percent of the gross revenues of an entity under a revenue sharing or royalty agreement.

(9) The term ‘‘separated affiliate’’ means a corporation under common ownership or control with a Bell operating com- pany that does not own or control a Bell operating company

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and is not owned or controlled by a Bell operating company and that engages in the provision of electronic publishing which is disseminated by means of such Bell operating com- pany’s or any of its affiliates’ basic telephone service.

(10) The term ‘‘Bell operating company’’ has the meaning provided in section 3, except that such term includes any enti- ty or corporation that is owned or controlled by such a com- pany (as so defined) but does not include an electronic pub- lishing joint venture owned by such an entity or corporation.

SEC. 275. ø47 U.S.C. 275¿ ALARM MONITORING SERVICES. (a) DELAYED ENTRY INTO ALARM MONITORING.—

(1) PROHIBITION.—No Bell operating company or affiliate thereof shall engage in the provision of alarm monitoring serv- ices before the date which is 5 years after the date of enact- ment of the Telecommunications Act of 1996.

(2) EXISTING ACTIVITIES.—Paragraph (1) does not prohibit or limit the provision, directly or through an affiliate, of alarm monitoring services by a Bell operating company that was en- gaged in providing alarm monitoring services as of November 30, 1995, directly or through an affiliate. Such Bell operating company or affiliate may not acquire any equity interest in, or obtain financial control of, any unaffiliated alarm monitoring service entity after November 30, 1995, and until 5 years after the date of enactment of the Telecommunications Act of 1996, except that this sentence shall not prohibit an exchange of cus- tomers for the customers of an unaffiliated alarm monitoring service entity. (b) NONDISCRIMINATION.—An incumbent local exchange carrier

(as defined in section 251(h)) engaged in the provision of alarm monitoring services shall—

(1) provide nonaffiliated entities, upon reasonable request, with the network services it provides to its own alarm moni- toring operations, on nondiscriminatory terms and conditions; and

(2) not subsidize its alarm monitoring services either di- rectly or indirectly from telephone exchange service operations. (c) EXPEDITED CONSIDERATION OF COMPLAINTS.—The Commis-

sion shall establish procedures for the receipt and review of com- plaints concerning violations of subsection (b) or the regulations thereunder that result in material financial harm to a provider of alarm monitoring service. Such procedures shall ensure that the Commission will make a final determination with respect to any such complaint within 120 days after receipt of the complaint. If the complaint contains an appropriate showing that the alleged vio- lation occurred, as determined by the Commission in accordance with such regulations, the Commission shall, within 60 days after receipt of the complaint, order the incumbent local exchange carrier (as defined in section 251(h)) and its affiliates to cease engaging in such violation pending such final determination.

(d) USE OF DATA.—A local exchange carrier may not record or use in any fashion the occurrence or contents of calls received by providers of alarm monitoring services for the purposes of mar- keting such services on behalf of such local exchange carrier, or

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any other entity. Any regulations necessary to enforce this sub- section shall be issued initially within 6 months after the date of enactment of the Telecommunications Act of 1996.

(e) DEFINITION OF ALARM MONITORING SERVICE.—The term ‘‘alarm monitoring service’’ means a service that uses a device lo- cated at a residence, place of business, or other fixed premises—

(1) to receive signals from other devices located at or about such premises regarding a possible threat at such premises to life, safety, or property, from burglary, fire, vandalism, bodily injury, or other emergency, and

(2) to transmit a signal regarding such threat by means of transmission facilities of a local exchange carrier or one of its affiliates to a remote monitoring center to alert a person at such center of the need to inform the customer or another per- son or police, fire, rescue, security, or public safety personnel of such threat,

but does not include a service that uses a medical monitoring de- vice attached to an individual for the automatic surveillance of an ongoing medical condition. SEC. 276. ø47 U.S.C. 276¿ PROVISION OF PAYPHONE SERVICE.

(a) NONDISCRIMINATION SAFEGUARDS.—After the effective date of the rules prescribed pursuant to subsection (b), any Bell oper- ating company that provides payphone service—

(1) shall not subsidize its payphone service directly or indi- rectly from its telephone exchange service operations or its ex- change access operations; and

(2) shall not prefer or discriminate in favor of its payphone service. (b) REGULATIONS.—

(1) CONTENTS OF REGULATIONS.—In order to promote com- petition among payphone service providers and promote the widespread deployment of payphone services to the benefit of the general public, within 9 months after the date of enact- ment of the Telecommunications Act of 1996, the Commission shall take all actions necessary (including any reconsideration) to prescribe regulations that—

(A) establish a per call compensation plan to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call using their payphone, except that emergency calls and telecommunications relay service calls for hearing disabled individuals shall not be subject to such compensation;

(B) discontinue the intrastate and interstate carrier access charge payphone service elements and payments in effect on such date of enactment, and all intrastate and interstate payphone subsidies from basic exchange and ex- change access revenues, in favor of a compensation plan as specified in subparagraph (A);

(C) prescribe a set of nonstructural safeguards for Bell operating company payphone service to implement the pro- visions of paragraphs (1) and (2) of subsection (a), which safeguards shall, at a minimum, include the nonstructural

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safeguards equal to those adopted in the Computer In- quiry-III (CC Docket No. 90–623) proceeding;

(D) provide for Bell operating company payphone serv- ice providers to have the same right that independent payphone providers have to negotiate with the location provider on the location provider’s selecting and con- tracting with, and, subject to the terms of any agreement with the location provider, to select and contract with, the carriers that carry interLATA calls from their payphones, unless the Commission determines in the rulemaking pur- suant to this section that it is not in the public interest; and

(E) provide for all payphone service providers to have the right to negotiate with the location provider on the lo- cation provider’s selecting and contracting with, and, sub- ject to the terms of any agreement with the location pro- vider, to select and contract with, the carriers that carry intraLATA calls from their payphones. (2) PUBLIC INTEREST TELEPHONES.—In the rulemaking con-

ducted pursuant to paragraph (1), the Commission shall deter- mine whether public interest payphones, which are provided in the interest of public health, safety, and welfare, in locations where there would otherwise not be a payphone, should be maintained, and if so, ensure that such public interest payphones are supported fairly and equitably.

(3) EXISTING CONTRACTS.—Nothing in this section shall af- fect any existing contracts between location providers and payphone service providers or interLATA or intraLATA car- riers that are in force and effect as of the date of enactment of the Telecommunications Act of 1996. (c) STATE PREEMPTION.—To the extent that any State require-

ments are inconsistent with the Commission’s regulations, the Commission’s regulations on such matters shall preempt such State requirements.

(d) DEFINITION.—As used in this section, the term ‘‘payphone service’’ means the provision of public or semi-public pay tele- phones, the provision of inmate telephone service in correctional in- stitutions, and any ancillary services.

TITLE III—SPECIAL PROVISIONS RELATING TO RADIO

PART I—GENERAL PROVISIONS

SEC. 301. ø47 U.S.C. 301¿ LICENSE FOR RADIO COMMUNICATION OR TRANSMISSION OF ENERGY.

It is the purpose of this Act, among other things, to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and pe- riods of the license. No person shall use or operate any apparatus

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1 Public Law 97–259, 96 Stat. 1087, 1091–92, Sept. 13, 1982, which amended section 302(a), also stated:

Any minimum performance standard established by the Federal Communications Com- mission under section 302(a)(2) of the Communications Act of 1934, as added by the amend- ment made in subsection (a)(1) [of Sec. 108 of the statute], shall not apply to any home elec- tronic equipment or systems manufactured before the date of the enactment of this Act.

for the transmission of energy or communications or signals by radio (a) from one place in any State, Territory, or possession of the United States or in the District of Columbia to another place in the same State, Territory, possession, or District; or (b) from any State, Territory, or possession of the United States, or from the District of Columbia to any other State, Territory, or possession of the United States; or (c) from any place in any State, Territory, or pos- session of the United States, or in the District of Columbia, to any place in any foreign country or to any vessel; or (d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or sig- nals from and/or to places beyond the borders of said State; or (e) upon any vessel or aircraft of the United States (except as provided in section 303(t)); or (f) upon any other mobile stations within the jurisdiction of the United States, except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act. SEC. 302. ø47 U.S.C. 302a¿ DEVICES WHICH INTERFERE WITH RADIO RE-

CEPTION. (a) The Commission may, consistent with the public interest,

convenience, and necessity, make reasonable regulations (1) gov- erning the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, con- duction, or other means in sufficient degree to cause harmful inter- ference to radio communications; and (2) establishing minimum performance standards for home electronic equipment and systems to reduce their susceptibility to interference from radio frequency energy. Such regulations shall be applicable to the manufacture, import, sale, offer for sale, or shipment of such devices and home electronic equipment and systems, and to the use of such devices. 1

(b) No person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use de- vices, which fail to comply with regulations promulgated pursuant to this section.

(c) The provisions of this section shall not be applicable to car- riers transporting such devices or home electronic equipment and systems without trading in them, to devices or home electronic equipment and systems manufactured solely for export, to the equipment manufacturer, assembly, or installation of devices or home electronic and systems for its own use by a public utility en- gaged in providing electric service, or to devices or home electronic equipment and systems for use by the Government of the United States or any agency thereof. Devices and home electronic equip- ment and systems for use by the Government of the United States

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or any agency thereof shall be developed, procured, or otherwise ac- quired, including offshore procurement, under United States Gov- ernment criteria, standards, or specifications designed to achieve the objectives of reducing interference to radio reception and to home electronic equipment and systems, taking into account the unique needs of national defense and security.

(d)(1) Within 180 days after the date of enactment of this sub- section, the Commission shall prescribe and make effective regula- tions denying equipment authorization (under part 15 of title 47, Code of Federal Regulations, or any other part of that title) for any scanning receiver that is capable of—

(A) receiving transmissions in the frequencies allocated to the domestic cellular radio telecommunications service,

(B) readily being altered by the user to receive trans- missions in such frequencies, or

(C) being equipped with decoders that convert digital cel- lular transmissions to analog voice audio. (2) Beginning 1 year after the effective date of the regulations

adopted pursuant to paragraph (1), no receiver having the capabili- ties described in subparagraph (A), (B), or (C) of paragraph (1), as such capabilities are defined in such regulations, shall be manufac- tured in the United States or imported for use in the United States.

(e) The Commission may— (1) authorize the use of private organizations for testing

and certifying the compliance of devices or home electronic equipment and systems with regulations promulgated under this section;

(2) accept as prima facie evidence of such compliance the certification by any such organization; and

(3) establish such qualifications and standards as it deems appropriate for such private organizations, testing, and certifi- cation. (f )(1) Except as provided in paragraph (2), a State or local gov-

ernment may enact a statute or ordinance that prohibits a violation of the following regulations of the Commission under this section:

(A) A regulation that prohibits a use of citizens band radio equipment not authorized by the Commission.

(B) A regulation that prohibits the unauthorized operation of citizens band radio equipment on a frequency between 24 MHz and 35 MHz. (2) A station that is licensed by the Commission pursuant to

section 301 in any radio service for the operation at issue shall not be subject to action by a State or local government under this sub- section. A State or local government statute or ordinance enacted for purposes of this subsection shall identify the exemption avail- able under this paragraph.

(3) The Commission shall, to the extent practicable, provide technical guidance to State and local governments regarding the detection and determination of violations of the regulations speci- fied in paragraph (1).

(4)(A) In addition to any other remedy authorized by law, a person affected by the decision of a State or local government agen- cy enforcing a statute or ordinance under paragraph (1) may sub-

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152Sec. 303 COMMUNICATIONS ACT OF 1934

mit to the Commission an appeal of the decision on the grounds that the State or local government, as the case may be, enacted a statute or ordinance outside the authority provided in this sub- section.

(B) A person shall submit an appeal on a decision of a State or local government agency to the Commission under this para- graph, if at all, not later than 30 days after the date on which the decision by the State or local government agency becomes final, but prior to seeking judicial review of such decision.

(C) The Commission shall make a determination on an appeal submitted under subparagraph (B) not later than 180 days after its submittal.

(D) If the Commission determines under subparagraph (C) that a State or local government agency has acted outside its authority in enforcing a statute or ordinance, the Commission shall preempt the decision enforcing the statute or ordinance.

(5) The enforcement of statute or ordinance that prohibits a violation of a regulation by a State or local government under para- graph (1) in a particular case shall not preclude the Commission from enforcing the regulation in that case concurrently.

(6) Nothing in this subsection shall be construed to diminish or otherwise affect the jurisdiction of the Commission under this section over devices capable of interfering with radio communica- tions.

(7) The enforcement of a statute or ordinance by a State or local government under paragraph (1) with regard to citizens band radio equipment on board a ‘‘commercial motor vehicle’’, as defined in section 31101 of title 49, United States Code, shall require prob- able cause to find that the commercial motor vehicle or the indi- vidual operating the vehicle is in violation of the regulations de- scribed in paragraph (1). SEC. 303. ø47 U.S.C. 303¿ GENERAL POWERS OF COMMISSION.

Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or necessity requires shall—

(a) Classify radio stations; (b) Prescribe the nature of the service to be rendered by each

class of licensed stations and each station within any class; (c) Assign bands of frequencies to the various classes of sta-

tions, and assign frequencies for each individual station and deter- mine the power which each station shall use and the time during which it may operate;

(d) Determine the location of classes of stations or individual stations;

(e) Regulate the kind of apparatus to be used with respect to its external effects and the purity and sharpness of the emissions from each station and from the apparatus therein;

(f) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this Act: Provided, however, that changes in the frequencies, authorized power, or in the times of op- eration of any station, shall not be made without the consent of the station licensee unless the Commission shall determine that such

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changes will promote public convenience or interest or will serve public necessity, or the provisions of this Act will be more fully complied with;

(g) Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest;

(h) Have authority to establish areas or zones to be served by any station;

(i) Have authority to make special regulations applicable to radio stations engaged in chain broadcasting;

(j) Have authority to make general rules and regulations re- quiring stations to keep such records of programs, transmissions of energy, communications or signals as it may deem desirable;

(k) Have authority to exclude from the requirements of any regulations in whole or in part any radio station upon railroad roll- ing stock, or to modify such regulations in its discretion;

(l)(1) Have the authority to prescribe the qualifications of sta- tion operators, to classify them according to the duties to be per- formed, to fix the forms of such licenses, and to issue them to per- sons who are found to be qualified by the Commission and who oth- erwise are legally eligible for employment in the United States, ex- cept that such requirement relating to eligibility for employment in the United States shall not apply in the case of licenses issued by the Commission to (A) persons holding United States pilot certifi- cates; or (B) persons holding foreign aircraft pilot certificates which are valid in the United States, if the foreign government involved has entered into a reciprocal agreement under which such foreign government does not impose any similar requirement relating to eligibility for employment upon citizens of the United States;

(2) Notwithstanding paragraph (1) of this subsection, an indi- vidual to whom a radio station is licensed under the provisions of this Act may be issued an operator’s license to operate that station.

(3) In addition to amateur operator licenses which the Commis- sion may issue to aliens pursuant to paragraph (2) of this sub- section, and notwithstanding section 301 of this Act and paragraph (1) of this subsection, the Commission may issue authorizations, under such conditions and terms as it may prescribe, to permit an alien licensed by his government as an amateur radio operator to operate his amateur radio station licensed by his government in the United States, its possessions, and the Commonwealth of Puer- to Rico provided there is in effect a multilateral or bilateral agree- ment, to which the United States and the alien’s government are parties, for such operation on a reciprocal basis by United States amateur radio operators. Other provisions of this Act and of the Administrative Procedure Act shall not be applicable to any request or application for or modification, suspension or cancellation of any such authorization.

(m)(1) Have authority to suspend the license of any operator upon proof sufficient to satisfy the Commission that the licensee—

(A) Has violated, or caused, aided, or abetted the violation of, any provision of any Act, treaty, or convention binding on the United States, which the Commission is authorized to administer, or any regulation made by the Commission under any such Act, treaty, or convention; or

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154Sec. 303 COMMUNICATIONS ACT OF 1934

(B) Has failed to carry out a lawful order of the master or per- son lawfully in charge of the ship or aircraft on which he is em- ployed; or

(D) Has transmitted superfluous radio communications or sig- nals or communications containing profane or obscene words, lan- guage, or meaning, or has knowingly transmitted—

(1) False or deceptive signals or communications; or (2) A call signal or letter which has not been assigned by

proper authority to the station he is operating; or (E) Has willfully or maliciously interfered with any other radio

communications or signals; or (F) Has obtained or attempted to obtain, or has assisted an-

other to obtain or attempt to obtain, an operator’s license by fraudulent means.

(2) No order of suspension of any operator’s license shall take effect until fifteen days’ notice in writing thereof, stating the cause for the proposed suspension, has been given to the operator li- censee who may make written application to the Commission at any time within said fifteen days for hearing upon such order. The notice to the operator licensee shall not be effective until actually received by him, and from that time he shall have fifteen days in which to mail the said application. In the event that physical condi- tions prevent mailing of the application at the expiration of the fifteen-day period, the application shall then be mailed as soon as possible thereafter, accompanied by a satisfactory explanation of the delay. Upon receipt by the Commission of such application for hearing, said order of suspension shall be held in abeyance until the conclusion of the hearing which shall be conducted under such rules as the Commission may prescribe. Upon the conclusion of said hearing the Commission may affirm, modify, or revoke said order of suspension.

(n) Have authority to inspect all radio installations associated with stations required to be licensed by any Act, or which the Com- mission by rule has authorized to operate without a license under section 307(e)(1), or which are subject to the provisions of any Act, treaty, or convention binding on the United States, to ascertain whether in construction, installation, and operation they conform to the requirements of the rules and regulations of the Commission, the provisions of any Act, the terms of any treaty or convention binding on the United States and the conditions of the license or other instrument of authorization under which they are con- structed, installed, or operated.

(o) Have authority to designate call letters of all stations; (p) Have authority to cause to be published such call letters

and such other announcements and data as in the judgment of the Commission may be required for the efficient operation of radio stations subject the jurisdiction of the United States and for the proper enforcement of this Act;

(q) Have authority to require the painting and/or illumination of radio towers if and when in its judgment such towers constitute, or there is a reasonable possibility that they may constitute, a menace to air navigation. The permittee or licensee, and the tower

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1 Margin of subsection (u) so in law.

owner in any case in which the owner is not the permittee or li- censee, shall maintain the painting and/or illumination of the tower as prescribed by the Commission pursuant to this section. In the event that the tower ceases to be licensed by the Commission for the transmission of radio energy, the owner of the tower shall maintain the prescribed painting and/or illumination of such tower until it is dismantled, and the Commission may require the owner to dismantle and remove the tower when the administrator of the Federal Aviation Agency determines that there is a reasonable pos- sibility that it may constitute a menace to air navigation.

(r) Make such rules and regulations and prescribe such restric- tions and conditions, not inconsistent with law, as may be nec- essary to carry out the provisions of this Act, or any international radio or wire communications treaty or convention, or regulations annexed thereto, including any treaty or convention insofar as it relates to the use of radio, to which the United States is or may hereafter become a party.

(s) Have authority to require that apparatus designed to re- ceive television pictures broadcast simultaneously with sound be capable of adequately receiving all frequencies allocated by the Commission to television broadcasting when such apparatus is shipped in interstate commerce, or is imported from any foreign country into the United States, for sale or resale to the public.

(t) Notwithstanding the provisions of section 301(e), have au- thority, in any case in which an aircraft registered in the United States is operated (pursuant to a lease, charter, or similar arrange- ment) by an aircraft operator who is subject to regulation by the government of a foreign nation, to enter into an agreement with such government under which the Commission shall recognize and accept any radio station licenses and radio operator licenses issued by such government with respect to such aircraft.

(u) 1 Require that, if technically feasible— (1) apparatus designed to receive or play back video

programming transmitted simultaneously with sound, if such apparatus is manufactured in the United States or imported for use in the United States and uses a picture screen of any size—

(A) be equipped with built-in closed caption de- coder circuitry or capability designed to display closed- captioned video programming;

(B) have the capability to decode and make avail- able the transmission and delivery of video description services as required by regulations reinstated and modified pursuant to section 713(f); and

(C) have the capability to decode and make avail- able emergency information (as that term is defined in section 79.2 of the Commission’s regulations (47 CFR 79.2)) in a manner that is accessible to individuals who are blind or visually impaired; and (2) notwithstanding paragraph (1) of this subsection—

(A) apparatus described in such paragraph that use a picture screen that is less than 13 inches in size

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1 Amendment adding subsection (w) did not take effect under the provisions of section 551(e)(1) of the Telecommunications Act of 1996 (P.L. 104–104; 110 Stat 142; 47 U.S.C. 303, note).

meet the requirements of subparagraph (A), (B), or (C) of such paragraph only if the requirements of such subparagraphs are achievable (as defined in section 716);

(B) any apparatus or class of apparatus that are display-only video monitors with no playback capa- bility are exempt from the requirements of such para- graph; and

(C) the Commission shall have the authority, on its own motion or in response to a petition by a manu- facturer, to waive the requirements of this subsection for any apparatus or class of apparatus—

(i) primarily designed for activities other than receiving or playing back video programming transmitted simultaneously with sound; or

(ii) for equipment designed for multiple pur- poses, capable of receiving or playing video pro- gramming transmitted simultaneously with sound but whose essential utility is derived from other purposes.

(v) Have exclusive jurisdiction to regulate the provision of di- rect-to-home satellite services. As used in this subsection, the term ‘‘direct-to-home satellite services’’ means the distribution or broad- casting of programming or services by satellite directly to the sub- scriber’s premises without the use of ground receiving or distribu- tion equipment, except at the subscriber’s premises or in the uplink process to the satellite.

(w) 1 Prescribe— (1) on the basis of recommendations from an advisory com-

mittee established by the Commission in accordance with sec- tion 551(b)(2) of the Telecommunications Act of 1996, guide- lines and recommended procedures for the identification and rating of video programming that contains sexual, violent, or other indecent material about which parents should be in- formed before it is displayed to children: Provided, That noth- ing in this paragraph shall be construed to authorize any rat- ing of video programming on the basis of its political or reli- gious content; and

(2) with respect to any video programming that has been rated, and in consultation with the television industry, rules requiring distributors of such video programming to transmit such rating to permit parents to block the display of video pro- gramming that they have determined is inappropriate for their children. (x) Require, in the case of an apparatus designed to receive tel-

evision signals that are shipped in interstate commerce or manu- factured in the United States and that have a picture screen 13 inches or greater in size (measured diagonally), that such appa- ratus be equipped with a feature designed to enable viewers to block display of all programs with a common rating, except as oth- erwise permitted by regulations pursuant to section 330(c)(4).

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1 Margin of subsection (z) so in law. 2 Margin of subsection (aa) so in law.

(y) Have authority to allocate electromagnetic spectrum so as to provide flexibility of use, if—

(1) such use is consistent with international agreements to which the United States is a party; and

(2) the Commission finds, after notice and an opportunity for public comment, that—

(A) such an allocation would be in the public interest; (B) such use would not deter investment in commu-

nications services and systems, or technology development; and

(1) if achievable (as defined in section 716), apparatus designed to record video programming transmitted simul- taneously with sound, if such apparatus is manufactured in the United States or imported for use in the United States, enable the rendering or the pass through of closed captions, video description signals, and emergency infor- mation (as that term is defined in section 79.2 of title 47, Code of Federal Regulations) such that viewers are able to activate and de-activate the closed captions and video de- scription as the video programming is played back on a picture screen of any size; and

(2) interconnection mechanisms and standards for dig- ital video source devices are available to carry from the source device to the consumer equipment the information necessary to permit or render the display of closed cap- tions and to make encoded video description and emer- gency information audible. (aa) 2 Require—

(1) if achievable (as defined in section 716) that digital apparatus designed to receive or play back video program- ming transmitted in digital format simultaneously with sound, including apparatus designed to receive or display video programming transmitted in digital format using Internet protocol, be designed, developed, and fabricated so that control of appropriate built-in apparatus functions are accessible to and usable by individuals who are blind or visually impaired, except that the Commission may not specify the technical standards, protocols, procedures, and other technical requirements for meeting this requirement;

(2) that if on-screen text menus or other visual indica- tors built in to the digital apparatus are used to access the functions of the apparatus described in paragraph (1), such functions shall be accompanied by audio output that is ei- ther integrated or peripheral to the apparatus, so that such menus or indicators are accessible to and usable by individuals who are blind or visually impaired in real-time;

(3) that for such apparatus equipped with the func- tions described in paragraphs (1) and (2) built in access to

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158Sec. 304 COMMUNICATIONS ACT OF 1934

1 Margin for paragraph (3) so in law.

those closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features; and

(4) that in applying this subsection the term ‘appa- ratus’ does not include a navigation device, as such term is defined in section 76.1200 of the Commission’s rules (47 CFR 76.1200).

(bb) Require— (1) if achievable (as defined in section 716), that the on-

screen text menus and guides provided by navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal Regulations) for the display or selection of multi- channel video programming are audibly accessible in real-time upon request by individuals who are blind or visually impaired, except that the Commission may not specify the technical standards, protocols, procedures, and other technical require- ments for meeting this requirement;

(2) for navigation devices with built-in closed captioning capability, that access to that capability through a mechanism is reasonably comparable to a button, key, or icon designated for activating the closed captioning, or accessibility features; and

(3) 1 that, with respect to navigation device features and functions—

(A) delivered in software, the requirements set forth in this subsection shall apply to the manufac- turer of such software; and

(B) delivered in hardware, the requirements set forth in this subsection shall apply to the manufac- turer of such hardware.

SEC. 304. ø47 U.S.C. 304¿ WAIVER BY LICENSEE. No station license shall be granted by the Commission until

the applicant therefore shall have waived any claim to the use of any particular frequency or of the electromagnetic spectrum as against the regulatory power of the United States because of the previous use of the same, whether by license or otherwise. SEC. 305. ø47 U.S.C. 305¿ GOVERNMENT-OWNED STATIONS.

(a) Radio stations belonging to and operated by the United States shall not be subject to the provisions of sections 301 and 303 of this Act. All such Government stations shall use such fre- quencies as shall be assigned to each or to each class by the Presi- dent. All such stations, except stations on board naval and other Government vessels while at sea or beyond the limits of the conti- nental United States, when transmitting any radio communication or signal other than a communication or signal relating to Govern- ment business, shall conform to such rules and regulations de- signed to prevent interference with other radio stations and the rights of others as the Commission may prescribe.

(b) All stations owned and operated by the United States, ex- cept mobile stations of the Army of the United States, and all other

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159 Sec. 307COMMUNICATIONS ACT OF 1934

stations on land and sea, shall have special call letters designated by the Commission.

(c) The provisions of sections 301 and 303 of this Act notwith- standing, the President may, provided he determines it to be con- sistent with and in the interest of national security, authorize a foreign government, under such terms and conditions as he may prescribe, to construct and operate at the seat of government of the United States a low-power radio station in the fixed service at or near the site of the embassy or legation of such foreign government for transmission of its messages to points outside the United States, but only (1) where he determines that the authorization would be consistent with the national interest of the United States and (2) where such foreign government has provided reciprocal privileges to the United States to construct and operate radio sta- tions within territories subject to its jurisdiction. Foreign govern- ment stations authorized pursuant to the provisions of this sub- section shall conform to such rules and regulations as the Presi- dent may prescribe. The authorization of such stations, and the re- newal, modification, suspension, revocation, or other termination of such authority shall be in accordance with such procedures as may be established by the President and shall not be subject to the other provisions of this Act or of the Administrative Procedure Act. SEC. 306. ø47 U.S.C. 306¿ FOREIGN SHIPS.

Section 301 of this Act shall not apply to any person sending radio communications or signals on a foreign ship while the same is within the jurisdiction of the United States, but such commu- nications or signals shall be transmitted only in accordance with such regulations designed to prevent interference as may be pro- mulgated under the authority of this Act. SEC. 307. ø47 U.S.C. 307¿ ALLOCATION OF FACILITIES; TERM OF LI-

CENSES. (a) The Commission, if public convenience, interest, or neces-

sity will be served thereby, subject to the limitations of this Act, shall grant to any applicant therefor a station license provided for by this Act.

(b) In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, fre- quencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.

for the operation of a broadcasting station shall be for a term of not to exceed 8 years. Upon application therefor, a renewal of such license may be granted from time to time for a term of not to exceed 8 years from the date of expiration of the pre- ceding license, if the Commission finds that public interest, convenience, and necessity would be served thereby. Consistent with the foregoing provisions of this subsection, the Commis- sion may by rule prescribe the period or periods for which li- censes shall be granted and renewed for particular classes of stations, but the Commission may not adopt or follow any rule

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160Sec. 307 COMMUNICATIONS ACT OF 1934

which would preclude it, in any case involving a station of a particular class, from granting or renewing a license for a shorter period than that prescribed for stations of such class if, in its judgment, the public interest, convenience, or necessity would be served by such action.

(2) MATERIALS IN APPLICATION.—In order to expedite ac- tion on applications for renewal of broadcasting station licenses and in order to avoid needless expense to applicants for such renewals, the Commission shall not require any such applicant to file any information which previously has been furnished to the Commission or which is not directly material to the consid- erations that affect the granting or denial of such application, but the Commission may require any new or additional facts it deems necessary to make its findings.

(3) CONTINUATION PENDING DECISION.—Pending any ad- ministrative or judicial hearing and final decision on such an application and the disposition of any petition for rehearing pursuant to section 405 or section 402, the Commission shall continue such license in effect. (d) No renewal of an existing station license in the broadcast

or the common carrier services shall be granted more than thirty days prior to the expiration of the original license.

(e)(1) Notwithstanding any license requirement established in this Act, if the Commission determines that such authorization serves the public interest, convenience, and necessity, the Commis- sion may by rule authorize the operation of radio stations without individual licenses in the following radio services: (A) the citizens band radio service; (B) the radio control service; (C) the aviation radio service for aircraft stations operated on domestic flights when such aircraft are not otherwise required to carry a radio station; and (D) the maritime radio service for ship stations navigated on domestic voyages when such ships are not otherwise required to carry a radio station.

(2) Any radio station operator who is authorized by the Com- mission to operate without an individual license shall comply with all other provisions of this Act and with rules prescribed by the Commission under this Act.

(3) For purposes of this subsection, the terms ‘‘citizens band radio service’’, ‘‘radio control service’’, ‘‘aircraft station’’ and ‘‘ship station’’ shall have the meanings given them by the Commission by rule.

(f) Notwithstanding any other provision of law, (1) any holder of a broadcast license may broadcast to an area of Alaska that oth- erwise does not have access to over the air broadcasts via trans- lator, microwave, or other alternative signal delivery even if an- other holder of a broadcast license begins broadcasting to such area, (2) any holder of a broadcast license who has broadcast to an area of Alaska that did not have access to over the air broadcasts via translator, microwave, or other alternative signal delivery may continue providing such service even if another holder of a broad- cast license begins broadcasting to such area, and shall not be fined or subject to any other penalty, forfeiture, or revocation related to providing such service including any fine, penalty, forfeiture, or

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161 Sec. 308COMMUNICATIONS ACT OF 1934

revocation for continuing to operate notwithstanding orders to the contrary. SEC. 308. ø47 U.S.C. 308¿ APPLICATIONS FOR LICENSES; CONDITIONS

IN LICENSE FOR FOREIGN COMMUNICATION. (a) The Commission may grant construction permits and sta-

tion licenses, or modifications or renewals thereof, only upon writ- ten application therefor received by it: Provided, That (1) in cases of emergency found by the Commission involving danger to life or property or due to damage to equipment, or (2) during a national emergency proclaimed by the President or declared by the Congress and during the continuance of any war in which the United States is engaged and when such action is necessary for the national de- fense or security or otherwise in furtherance of the war effort, or (3) in cases of emergency where the Commission finds, in the non- broadcast services, that it would not be feasible to secure renewal applications from existing licensees or otherwise to follow normal licensing procedure, the Commission may grant construction per- mits and station licenses, or modifications or renewals thereof, dur- ing an emergency so found by the Commission or during the con- tinuance of any such national emergency or war, in such manner and upon such terms and conditions as the Commission shall by regulation prescribe, and without the filing of a formal application, but no authorization so granted shall continue in effect beyond the period of emergency or war requiring it: Provided further, That the Commission may issue by cable, telegraph, or radio a permit for the operation of a station on a vessel of the United States at sea, effective in lieu of a license until said vessel shall return to a port of the continental United States.

(b) All applications for station licenses, or modifications or re- newals thereof, shall set forth such facts as the Commission by reg- ulation may prescribe as to the citizenship, character, and finan- cial, technical, and other qualifications of the applicant to operate the station; the ownership and location of the proposed station and of the stations, if any, with which it is proposed to communicate; the frequencies and the power desired to be used; the hours of the day or other periods of time during which it is proposed to operate the station; the purposes for which the station is to be used; and such other information as it may require. The Commission, at any time after the filing of such original application and during the term of any such licenses, may require from an applicant or li- censee further written statements of fact to enable it to determine whether such original application should be granted or denied or such license revoked. Such application and/or such statement of fact shall be signed by the applicant and/or licensee in any manner or form, including by electronic means, as the Commission may prescribe by regulation.

(c) The Commission in granting any license for a station in- tended or used for commercial communication between the United States or any Territory or possession, continental or insular, sub- ject to the jurisdiction of the United States, and any foreign coun- try, may impose any terms, conditions, or restrictions authorized to be imposed with respect to submarine-cable licenses by section 2 of an Act entitled ‘‘An Act relating to the landing and operation of submarine cables in the United States,’’ approved May 27, 1921.

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162Sec. 309 COMMUNICATIONS ACT OF 1934

(d) SUMMARY OF COMPLAINTS.—Each applicant for the renewal of a commercial or noncommercial television license shall attach as an exhibit to the application a summary of written comments and suggestions received from the public and maintained by the li- censee (in accordance with Commission regulations) that comment on the applicant’s programming, if any, and that are characterized by the commentor as constituting violent programming. SEC. 309. ø47 U.S.C. 309¿ ACTION UPON APPLICATIONS; FORM OF AND

CONDITIONS ATTACHED TO LICENSES. (a) Subject to the provisions of this section, the Commission

shall determine, in the case of each application filed with it to which section 308 applies, whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission, upon examination of such application and upon consideration of such other matters as the Commission may officially notice, shall find that public interest, convenience, and ne- cessity would be served by the granting thereof, it shall grant such application.

(b) Except as provided in subsection (c) of this section, no such application—

(1) for an instrument of authorization in the case of a sta- tion in the broadcasting or common carrier services, or

(2) for an instrument of authorization in the case of a sta- tion in any of the following categories:

(A) industrial radio positioning stations for which fre- quencies are assigned on an exclusive basis,

(B) aeronautical en route stations, (C) aeronautical advisory stations, (D) airdrome control stations, (E) aeronautical fixed stations, and (F) such other stations or classes of stations, not in the

broadcasting or common carrier services, as the Commis- sion shall by rule prescribe,

shall be granted by the Commission earlier than thirty days fol- lowing issuance of public notice by the Commission of the accept- ance for filing of such application or of any substantial amendment thereof.

such subsection is applicable, or (2) to any application for—

(A) a minor change in the facilities of an authorized station,

(B) consent to an involuntary assignment or transfer under section 310(b) or to an assignment or transfer there- under which does not involve a substantial change in own- ership or control,

(C) a license under section 319(c) or, pending applica- tion for or grant of such license, any special or temporary authorization to permit interim operation to facilitate com- pletion of authorized construction or to provide substan- tially the same service as would be authorized by such li- cense,

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163 Sec. 309COMMUNICATIONS ACT OF 1934

(D) extension of time to complete construction of au- thorized facilities,

(E) an authorization of facilities for remote pickups, studio links and similar facilities for use in the operation of a broadcast station,

(F) authorizations pursuant to section 325(c) where the programs to be transmitted are special events not of a continuing nature,

(G) a special temporary authorization for nonbroadcast operation not to exceed thirty days where no application for regular operation is contemplated to be filed or not to exceed sixty days pending the filing of an application for such regular operation, or

(H) an authorization under any of the proviso clauses of section 308(a).

(d)(1) Any party in interest may file with the Commission a pe- tition to deny any application (whether as originally filed or as amended) to which subsection (b) of this section applies at any time prior to the day of Commission grant thereof without hearing or the day of formal designation thereof for hearing; except that with respect to any classification of applications, the Commission from time to time by rule may specify a shorter period (no less than thir- ty days following the issuance of public notice by the Commission of the acceptance for filing of such application or of any substantial amendment thereof), which shorter period shall be reasonably re- lated to the time when the applications would normally be reached for processing. The petitioner shall serve a copy of such petition on the applicant. The petition shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with subsection (a) (or subsection (k) in the case of renewal of any broadcast station license). Such allegations of fact shall, except for those of which official notice may be taken, be supported by affi- davit of a person or persons with personal knowledge thereof. The applicant shall be given the opportunity to file a reply in which al- legations of fact or denials thereof shall similarly be supported by affidavit.

(2) If the Commission finds on the basis of the application, the pleadings filed, or other matters which it may officially notice that there are no substantial and material questions of fact and that a grant of the application would be consistent with subsection (a) (or subsection (k) in the case of renewal of any broadcast station li- cense), it shall make the grant, deny the petition, and issue a con- cise statement of the reasons for denying the petition, which state- ment shall dispose of all substantial issues raised by the petition. If a substantial and material question of fact is presented or if the Commission for any reason is unable to find that grant of the ap- plication would be consistent with subsection (a) (or subsection (k) in the case of renewal of any broadcast station license), it shall pro- ceed as provided in subsection (e).

(e) If, in the case of any application to which subsection (a) of this section applies, a substantial and material question of fact is presented or the Commission for any reason is unable to make the finding specified in such subsection, it shall formally designate the

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164Sec. 309 COMMUNICATIONS ACT OF 1934

application for hearing on the ground or reasons then obtaining and shall forthwith notify the applicant and all other known par- ties in interest of such action and the ground and reasons therefor, specifying with particularity the matters and things in issue but not including issues or requirements phrased generally. When the Commission has so designated an application for hearing, the par- ties in interest, if any, who are not notified by the Commission of such action may acquire the status of a party to the proceeding thereon by filing a petition for intervention showing the basis for their interest not more than thirty days after publication of the hearing issues or any substantial amendment thereto in the Fed- eral Register. Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate. The burden of pro- ceeding with the introduction of evidence and the burden of proof shall be upon the applicant, except that with respect to any issue presented by a petition to deny or a petition to enlarge the issues, such burdens shall be as determined by the Commission.

(f) When an application subject to subsection (b) has been filed, the Commission, notwithstanding the requirements of such sub- section, may, if the grant of such application is otherwise author- ized by law and if it finds that there are extraordinary cir- cumstances requiring temporary operations in the public interest and that delay in the institution of such temporary operations would seriously prejudice the public interest, grant a temporary au- thorization, accompanied by a statement of its reasons therefor, to permit such temporary operations for a period not exceeding 180 days, and upon making like findings may extend such temporary authorization for additional periods not to exceed 180 days. When any such grant of a temporary authorization is made, the Commis- sion shall give expeditious treatment to any timely filed petition to deny such application and to any petition for rehearing of such grant filed under section 405.

(g) The Commission is authorized to adopt reasonable classi- fications of applications and amendments in order to effectuate the purposes of this section.

(h) Such station licenses as the Commission may grant shall be in such general form as it may prescribe, but each license shall contain, in addition to other provisions, a statement of the fol- lowing conditions to which such license shall be subject: (1) The station license shall not vest in the licensee any right to operate the station nor any right in the use of the frequencies designated in the license beyond the term thereof nor in any other manner than authorized therein; (2) neither the license nor the right grant- ed thereunder shall be assigned or otherwise transferred in viola- tion of this Act; (3) every license issued under this Act shall be sub- ject in terms to the right of use or control conferred by section 706 of this Act.

(i) RANDOM SELECTION.— (1) GENERAL AUTHORITY.—Except as provided in paragraph

(5), if there is more than one application for any initial license or construction permit, then the Commission shall have the au- thority to grant such license or permit to a qualified applicant through the use of a system of random selection.

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1 This compilation executes amendments made by section 304(a)(9) but not amendments made by section 303(a)(17) of the Communications Assistance for Law Enforcement Act (P.L. 103– 414).

(2) No license or construction permit shall be granted to an ap- plicant selected pursuant to paragraph (1) unless the Commission determines the qualifications of such applicant pursuant to sub- section (a) and section 308(b). When substantial and material ques- tions of fact exist concerning such qualifications, the Commission shall conduct a hearing in order to make such determinations. For the purposes of making such determinations, the Commission may, by rule, and notwithstanding any other provision of law—

(A) adopt procedures for the submission of all or part of the evidence in written form;

(B) delegate the function of presiding at the taking of writ- ten evidence to Commission employees other than administra- tive law judges; and

(C) omit the determination required by subsection (a) with respect to any application other than the one selected pursuant to paragraph (1). (3)(A) The Commission shall establish rules and procedures to

ensure that, in the administration of any system of random selec- tion under this subsection used for granting licenses or construc- tion permits for any media of mass communications, significant preferences will be granted to applicants or groups of applicants, the grant to which of the license or permit would increase the di- versification of ownership of the media of mass communications. To further diversify the ownership of the media of mass communica- tions, an additional significant preference shall be granted to any applicant controlled by a member or members of minority group.

(B) The Commission shall have authority to require each quali- fied applicant seeking a significant preference under subparagraph (A) to submit to the Commission such information as may be nec- essary to enable the Commission to make a determination regard- ing whether such applicant shall be granted such preference. Such information shall be submitted in such form, at such times, and in accordance with such procedures, as the Commission may require.

vision, radio, cable television, multipoint distribution service, direct broadcast satellite service, and other services, the licensed facilities of which may be substantially devoted toward providing program- ming or other information services within the editorial control of the licensee.

(ii) The term ‘‘minority group’’ includes Blacks, Hispanics, American Indians, Alaska Natives, Asians, and Pacific Islanders.

(4)(A) The Commission shall 1, after notice and opportunity for hearing, prescribe rules establishing a system of random selection for use by the Commission under this subsection in any instance in which the Commission, in its discretion, determines that such use is appropriate for the granting of any license or permit in ac- cordance with paragraph (1).

(B) The Commission shall have authority to amend such rules from time to time to the extent necessary too carry out the provi-

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2Indentation so in original. 3 Section 309(j) of the Communications Act of 1934 was extensively amended by section 3002

of the Balanced Budget Act of 1997 (P.L. 105–33; Aug. 5, 1997). Sections 3002(c), 3007, and 3008 contained the following additional provisions related to spectrum to be made available by com- petitive bidding:

SEC. 3002. SPECTRUM AUCTIONS. (c) ø47 U.S.C. 925 note¿ COMMISSION OBLIGATION TO MAKE ADDITIONAL SPECTRUM AVAIL-

ABLE BY AUCTION.— (1) IN GENERAL.—The Commission shall complete all actions necessary to permit the as-

signment by September 30, 2002, by competitive bidding pursuant to section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)), of licenses for the use of bands of fre- quencies that—

(A) in the aggregate span not less than 55 megahertz; (B) are located below 3 gigahertz; (C) have not, as of the date of enactment of this Act—

(i) been designated by Commission regulation for assignment pursuant to such section;

(ii) been identified by the Secretary of Commerce pursuant to section 113 of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 923);

(iii) been allocated for Federal Government use pursuant to section 305 of the Communications Act of 1934 (47 U.S.C. 305);

(iv) been designated for reallocation under section 337 of the Communications Act of 1934 (as added by this Act); or

(v) been allocated or authorized for unlicensed use pursuant to part 15 of the Commission’s regulations (47 C.F.R. Part 15), if the operation of services licensed pursuant to competitive bidding would interfere with operation of end-user prod- ucts permitted under such regulations;

(D) include frequencies at 2,110–2,150 megahertz; and (E) include 15 megahertz from within the bands of frequencies at 1,990–2,110 mega-

hertz. (2) CRITERIA FOR REASSIGNMENT.—In making available bands of frequencies for competi-

tive bidding pursuant to paragraph (1), the Commission shall— (A) seek to promote the most efficient use of the electromagnetic spectrum; (B) consider the cost of relocating existing uses to other bands of frequencies or other

means of communication; (C) consider the needs of existing public safety radio services (as such services are

described in section 309(j)(2)(A) of the Communications Act of 1934, as amended by this Act);

(D) comply with the requirements of international agreements concerning spectrum allocations; and

(E) coordinate with the Secretary of Commerce when there is any impact on Federal Government spectrum use.

(3) USE OF BANDS AT 2,110-2,150 MEGAHERTZ.—The Commission shall reallocate spectrum located at 2,110-2,150 megahertz for assignment by competitive bidding unless the Commis- sion determines that auction of other spectrum (A) better serves the public interest, conven- ience, and necessity, and (B) can reasonably be expected to produce greater receipts. If the Commission makes such a determination, then the Commission shall, within 2 years after the date of enactment of this Act, identify an alternative 40 megahertz, and report to the Congress an identification of such alternative 40 megahertz for assignment by competitive bidding.

sions of this subsection. Any such amendment shall be made after notice and opportunity for hearing.

(C) Not later than 180 days after the date of enactment of this subparagraph, the Commission shall prescribe such transfer disclo- sures and antitrafficking restrictions and payment schedules as are necessary to prevent the unjust enrichment of recipients of licenses or permits as a result of the methods employed to issue licenses under this subsection.

(5) 2 TERMINATION OF AUTHORITY.—(A) Except as provided in subparagraph (B), the Commission shall not issue any li- cense or permit using a system of random selection under this subsection after July 1, 1997.

(B) Subparagraph (A) of this paragraph shall not apply with respect to licenses or permits for stations described in sec- tion 397(6) of this Act. (j) USE OF COMPETITIVE BIDDING.— 3

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(4) USE OF 15 MEGAHERTZ FROM BANDS AT 1,990-2,110 MEGAHERTZ.—The Commission shall reallocate 15 megahertz from spectrum located at 1,990-2,110 megahertz for assignment by competitive bidding unless the President determines such spectrum cannot be reallocated due to the need to protect incumbent Federal systems from interference, and that allocation of other spectrum (A) better serves the public interest, convenience, and necessity, and (B) can reasonably be expected to produce comparable receipts. If the President makes such a determination, then the President shall, within 2 years after the date of enactment of this Act, identify alternative bands of frequencies totalling 15 megahertz, and report to the Con- gress an identification of such alternative bands for assignment by competitive bidding.

(5) NOTIFICATION TO THE SECRETARY OF COMMERCE.—The Commission shall attempt to accommodate incumbent licensees displaced under this section by relocating them to other frequencies available for allocation by the Commission. The Commission shall notify the Secretary of Commerce whenever the Commission is not able to provide for the effective re- location of an incumbent licensee to a band of frequencies available to the Commission for assignment. The notification shall include—

(A) specific information on the incumbent licensee; (B) the bands the Commission considered for relocation of the licensee; (C) the reasons the licensee cannot be accommodated in such bands; and (D) the bands of frequencies identified by the Commission that are—

(i) suitable for the relocation of such licensee; and (ii) allocated for Federal Government use, but that could be reallocated pursu-

ant to part B of the National Telecommunications and Information Administra- tion Organization Act (as amended by this Act).

SEC. 3007. ø47 U.S.C. 309 note¿ DEADLINE FOR COLLECTION [Repealed by section 3(b)(2) of P.L. 107–195. Required proceeds of bidding to be deposited

by September 30, 2002.]

SEC. 3008. ø47 U.S.C. 309 note¿ ADMINISTRATIVE PROCEDURES FOR SPECTRUM AUCTIONS. Notwithstanding section 309(b) of the Communications Act of 1934 (47 U.S.C. 309(b)), no

application for an instrument of authorization for frequencies assigned under this title (or amendments made by this title) shall be granted by the Commission earlier than 7 days fol- lowing issuance of public notice by the Commission of the acceptance for filing of such applica- tion or of any substantial amendment thereto. Notwithstanding section 309(d)(1) of such Act (47 U.S.C. 309(d)(1)), the Commission may specify a period (no less than 5 days following issuance of such public notice) for the filing of petitions to deny any application for an instrument of authorization for such frequencies.

(1) GENERAL AUTHORITY.—If, consistent with the obliga- tions described in paragraph (6)(E), mutually exclusive applica- tions are accepted for any initial license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding that meets the re- quirements of this subsection.

(2) EXEMPTIONS.—The competitive bidding authority grant- ed by this subsection shall not apply to licenses or construction permits issued by the Commission—

(A) for public safety radio services, including private internal radio services used by State and local govern- ments and non-government entities and including emer- gency road services provided by not-for-profit organiza- tions, that—

(i) are used to protect the safety of life, health, or property; and

(ii) are not made commercially available to the public; (B) for initial licenses or construction permits for dig-

ital television service given to existing terrestrial broad- cast licensees to replace their analog television service li- censes; or

each class of licenses or permits that the Commission grants

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through the use of a competitive bidding system, the Commis- sion shall, by regulation, establish a competitive bidding meth- odology. The Commission shall seek to design and test multiple alternative methodologies under appropriate circumstances. The Commission shall, directly or by contract, provide for the design and conduct (for purposes of testing) of competitive bid- ding using a contingent combinatorial bidding system that per- mits prospective bidders to bid on combinations or groups of li- censes in a single bid and to enter multiple alternative bids within a single bidding round. In identifying classes of licenses and permits to be issued by competitive bidding, in specifying eligibility and other characteristics of such licenses and per- mits, and in designing the methodologies for use under this subsection, the Commission shall include safeguards to protect the public interest in the use of the spectrum and shall seek to promote the purposes specified in section 1 of this Act and the following objectives:

(A) the development and rapid deployment of new technologies, products, and services for the benefit of the public, including those residing in rural areas, without ad- ministrative or judicial delays;

(B) promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding ex- cessive concentration of licenses and by disseminating li- censes among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women;

(C) recovery for the public of a portion of the value of the public spectrum resource made available for commer- cial use and avoidance of unjust enrichment through the methods employed to award uses of that resource;

(D) efficient and intensive use of the electromagnetic spectrum;

(E) ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is al- lowed—

(i) before issuance of bidding rules, to permit no- tice and comment on proposed auction procedures; and

(ii) after issuance of bidding rules, to ensure that interested parties have a sufficient time to develop business plans, assess market conditions, and evaluate the availability of equipment for the relevant services; and (F) for any auction of eligible frequencies described in

section 113(g)(2) of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 923(g)(2)), the recovery of 110 percent of estimated reloca- tion or sharing costs as provided to the Commission pursu- ant to section 113(g)(4) of such Act. (4) CONTENTS OF REGULATIONS.—In prescribing regulations

pursuant to paragraph (3), the Commission shall— (A) consider alternative payment schedules and meth-

ods of calculation, including lump sums or guaranteed in-

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stallment payments, with or without royalty payments, or other schedules or methods that promote the objectives de- scribed in paragraph (3)(B), and combinations of such schedules and methods;

(B) include performance requirements, such as appro- priate deadlines and penalties for performance failures, to ensure prompt delivery of service to rural areas, to prevent stockpiling or warehousing of spectrum by licensees or per- mittees, and to promote investment in and rapid deploy- ment of new technologies and services;

(C) consistent with the public interest, convenience, and necessity, the purposes of this Act, and the character- istics of the proposed service, prescribe area designations and bandwidth assignments that promote (i) an equitable distribution of licenses and services among geographic areas, (ii) economic opportunity for a wide variety of appli- cants, including small businesses, rural telephone compa- nies, and businesses owned by members of minority groups and women, and (iii) investment in and rapid deployment of new technologies and services;

(D) ensure that small businesses, rural telephone com- panies, and businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum-based services, and, for such purposes, consider the use of tax certificates, bidding pref- erences, and other procedures;

(E) require such transfer disclosures and antitrafficking restrictions and payment schedules as may be necessary to prevent unjust enrichment as a result of the methods employed to issue licenses and permits; and

(F) prescribe methods by which a reasonable reserve price will be required, or a minimum bid will be estab- lished, to obtain any license or permit being assigned pur- suant to the competitive bidding, unless the Commission determines that such a reserve price or minimum bid is not in the public interest. (5) BIDDER AND LICENSEE QUALIFICATION.—No person shall

be permitted to participate in a system of competitive bidding pursuant to this subsection unless such bidder submits such information and assurances as the Commission may require to demonstrate that such bidder’s application is acceptable for fil- ing. No license shall be granted to an applicant selected pursu- ant to this subsection unless the Commission determines that the applicant is qualified pursuant to subsection (a) and sec- tions 308(b) and 310. Consistent with the objectives described in paragraph (3), the Commission shall, by regulation, pre- scribe expedited procedures consistent with the procedures au- thorized by subsection (i)(2) for the resolution of any substan- tial and material issues of fact concerning qualifications.

(6) RULES OF CONSTRUCTION.—Nothing in this subsection, or in the use of competitive bidding, shall—

(A) alter spectrum allocation criteria and procedures established by the other provisions of this Act;

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(B) limit or otherwise affect the requirements of sub- section (h) of this section, section 301, 304, 307, 310, or 706, or any other provision of this Act (other than sub- sections (d)(2) and (e) of this section);

(C) diminish the authority of the Commission under the other provisions of this Act to regulate or reclaim spec- trum licenses;

(D) be construed to convey any rights, including any expectation of renewal of a license, that differ from the rights that apply to other licenses within the same service that were not issued pursuant to this subsection;

(E) be construed to relieve the Commission of the obli- gation in the public interest to continue to use engineering solutions, negotiation, threshold qualifications, service reg- ulations, and other means in order to avoid mutual exclu- sivity in application and licensing proceedings;

(F) be construed to prohibit the Commission from issuing nationwide, regional, or local licenses or permits;

(G) be construed to prevent the Commission from awarding licenses to those persons who make significant contributions to the development of a new telecommuni- cations service or technology; or

(H) be construed to relieve any applicant for a license or permit of the obligation to pay charges imposed pursu- ant to section 8 of this Act. (7) CONSIDERATION OF REVENUES IN PUBLIC INTEREST DE-

TERMINATIONS.— (A) CONSIDERATION PROHIBITED.—In making a decision

pursuant to section 303(c) to assign a band of frequencies to a use for which licenses or permits will be issued pursu- ant to this subsection, and in prescribing regulations pur- suant to paragraph (4)(C) of this subsection, the Commis- sion may not base a finding of public interest, convenience, and necessity on the expectation of Federal revenues from the use of a system of competitive bidding under this sub- section.

(B) CONSIDERATION LIMITED.—In prescribing regula- tions pursuant to paragraph (4)(A) of this subsection, the Commission may not base a finding of public interest, con- venience, and necessity solely or predominantly on the ex- pectation of Federal revenues from the use of a system of competitive bidding under this subsection.

(C) CONSIDERATION OF DEMAND FOR SPECTRUM NOT AF- FECTED.—Nothing in this paragraph shall be construed to prevent the Commission from continuing to consider con- sumer demand for spectrum-based services. (8) TREATMENT OF REVENUES.—

(A) GENERAL RULE.—Except as provided in subpara- graphs (B), (D), (E), (F), and (G), all proceeds from the use of a competitive bidding system under this subsection shall be deposited in the Treasury in accordance with chapter 33 of title 31, United States Code.

(B) RETENTION OF REVENUES.—Notwithstanding sub- paragraph (A), the salaries and expenses account of the

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Commission shall retain as an offsetting collection such sums as may be necessary from such proceeds for the costs of developing and implementing the program required by this subsection. Such offsetting collections shall be avail- able for obligation subject to the terms and conditions of the receiving appropriations account, and shall be depos- ited in such accounts on a quarterly basis. Such offsetting collections are authorized to remain available until ex- pended. No sums may be retained under this subpara- graph during any fiscal year beginning after September 30, 1998, if the annual report of the Commission under section 4(k) for the second preceding fiscal year fails to in- clude in the itemized statement required by paragraph (3) of such section a statement of each expenditure made for purposes of conducting competitive bidding under this sub- section during such second preceding fiscal year.

(C) DEPOSIT AND USE OF AUCTION ESCROW AC- COUNTS.—Any deposits the Commission may require for the qualification of any person to bid in a system of com- petitive bidding pursuant to this subsection shall be depos- ited in an interest bearing account at a financial institu- tion designated for purposes of this subsection by the Com- mission (after consultation with the Secretary of the Treas- ury). Within 45 days following the conclusion of the com- petitive bidding—

(i) the deposits of successful bidders shall be paid to the Treasury, except as otherwise provided in sub- paragraphs (D)(ii), (E)(ii), (F), and (G);

(ii) the deposits of unsuccessful bidders shall be returned to such bidders; and

(iii) the interest accrued to the account shall be deposited in the general fund of the Treasury, where such amount shall be dedicated for the sole purpose of deficit reduction. (D) PROCEEDS FROM REALLOCATED FEDERAL SPEC-

TRUM.— (i) IN GENERAL.—Except as provided in clause (ii),

cash proceeds attributable to the auction of any eligi- ble frequencies described in section 113(g)(2) of the National Telecommunications and Information Admin- istration Organization Act (47 U.S.C. 923(g)(2)) shall be deposited in the Spectrum Relocation Fund estab- lished under section 118 of such Act, and shall be available in accordance with that section.

(ii) CERTAIN OTHER PROCEEDS.—Notwithstanding subparagraph (A) and except as provided in subpara- graph (B), in the case of proceeds (including deposits and upfront payments from successful bidders) attrib- utable to the auction of eligible frequencies described in paragraph (2) of section 113(g) of the National Tele- communications and Information Administration Or- ganization Act that are required to be auctioned by section 6401(b)(1)(B) of the Middle Class Tax Relief and Job Creation Act of 2012, such portion of such

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proceeds as is necessary to cover the relocation or sharing costs (as defined in paragraph (3) of such sec- tion 113(g)) of Federal entities relocated from such eli- gible frequencies shall be deposited in the Spectrum Relocation Fund. The remainder of such proceeds shall be deposited in the Public Safety Trust Fund estab- lished by section 6413(a)(1) of the Middle Class Tax Relief and Job Creation Act of 2012. (E) TRANSFER OF RECEIPTS.—

(i) ESTABLISHMENT OF FUND.—There is established in the Treasury of the United States a fund to be known as the Digital Television Transition and Public Safety Fund.

(ii) PROCEEDS FOR FUNDS.—Notwithstanding sub- paragraph (A), the proceeds (including deposits and upfront payments from successful bidders) from the use of a competitive bidding system under this sub- section with respect to recovered analog spectrum shall be deposited in the Digital Television Transition and Public Safety Fund.

(iii) TRANSFER OF AMOUNT TO TREASURY.—On Sep- tember 30, 2009, the Secretary shall transfer $7,363,000,000 from the Digital Television Transition and Public Safety Fund to the general fund of the Treasury.

(iv) RECOVERED ANALOG SPECTRUM.—For purposes of clause (i), the term ‘‘recovered analog spectrum’’ has the meaning provided in paragraph (15)(C)(vi). (F) CERTAIN PROCEEDS DESIGNATED FOR PUBLIC SAFETY

TRUST FUND.—Notwithstanding subparagraph (A) and ex- cept as provided in subparagraphs (B) and (D)(ii), the pro- ceeds (including deposits and upfront payments from suc- cessful bidders) from the use of a system of competitive bidding under this subsection pursuant to section 6401(b)(1)(B) of the Middle Class Tax Relief and Job Cre- ation Act of 2012 shall be deposited in the Public Safety Trust Fund established by section 6413(a)(1) of such Act.

(G) INCENTIVE AUCTIONS.— (i) IN GENERAL.—Notwithstanding subparagraph

(A) and except as provided in subparagraph (B), the Commission may encourage a licensee to relinquish voluntarily some or all of its licensed spectrum usage rights in order to permit the assignment of new initial licenses subject to flexible-use service rules by sharing with such licensee a portion, based on the value of the relinquished rights as determined in the reverse auc- tion required by clause (ii)(I), of the proceeds (includ- ing deposits and upfront payments from successful bidders) from the use of a competitive bidding system under this subsection.

(ii) LIMITATIONS.—The Commission may not enter into an agreement for a licensee to relinquish spec- trum usage rights in exchange for a share of auction proceeds under clause (i) unless—

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(I) the Commission conducts a reverse auction to determine the amount of compensation that li- censees would accept in return for voluntarily re- linquishing spectrum usage rights; and

(II) at least two competing licensees partici- pate in the reverse auction. (iii) TREATMENT OF REVENUES.—Notwithstanding

subparagraph (A) and except as provided in subpara- graph (B), the proceeds (including deposits and up- front payments from successful bidders) from any auc- tion, prior to the end of fiscal year 2022, of spectrum usage rights made available under clause (i) that are not shared with licensees under such clause shall be deposited as follows:

(I) $1,750,000,000 of the proceeds from the in- centive auction of broadcast television spectrum required by section 6403 of the Middle Class Tax Relief and Job Creation Act of 2012 shall be de- posited in the TV Broadcaster Relocation Fund es- tablished by subsection (d)(1) of such section.

(II) All other proceeds shall be deposited— (aa) prior to the end of fiscal year 2022,

in the Public Safety Trust Fund established by section 6413(a)(1) of such Act; and

(bb) after the end of fiscal year 2022, in the general fund of the Treasury, where such proceeds shall be dedicated for the sole pur- pose of deficit reduction.

(iv) CONGRESSIONAL NOTIFICATION.—At least 3 months before any incentive auction conducted under this subparagraph, the Chairman of the Commission, in consultation with the Director of the Office of Man- agement and Budget, shall notify the appropriate com- mittees of Congress of the methodology for calculating the amounts that will be shared with licensees under clause (i).

(v) DEFINITION.—In this subparagraph, the term ‘‘appropriate committees of Congress’’ means—

(I) the Committee on Commerce, Science, and Transportation of the Senate;

(II) the Committee on Appropriations of the Senate;

(III) the Committee on Energy and Commerce of the House of Representatives; and

(IV) the Committee on Appropriations of the House of Representatives.

(9) USE OF FORMER GOVERNMENT SPECTRUM.—The Com- mission shall, not later than 5 years after the date of enact- ment of this subsection, issue licenses and permits pursuant to this subsection for the use of bands of frequencies that—

(A) in the aggregate span not less than 10 megahertz; and

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(B) have been reassigned from Government use pursu- ant to part B of the National Telecommunications and In- formation Administration Organization Act. (10) AUTHORITY CONTINGENT ON AVAILABILITY OF ADDI-

TIONAL SPECTRUM.— (A) INITIAL CONDITIONS.—The Commission’s authority

to issue licenses or permits under this subsection shall not take effect unless—

(i) the Secretary of Commerce has submitted to the Commission the report required by section 113(d)(1) of the National Telecommunications and In- formation Administration Organization Act;

(ii) such report recommends for immediate re- allocation bands of frequencies that, in the aggregate, span not less than 50 megahertz;

(iii) such bands of frequencies meet the criteria re- quired by section 113(a) of such Act; and

(iv) the Commission has completed the rule- making required by section 332(c)(1)(D) of this Act. (B) SUBSEQUENT CONDITIONS.—The Commission’s au-

thority to issue licenses or permits under this subsection on and after 2 years after the date of the enactment of this subsection shall cease to be effective if—

(i) the Secretary of Commerce has failed to submit the report required by section 113(a) of the National Telecommunications and Information Administration Organization Act;

(ii) the President has failed to withdraw and limit assignments of frequencies as required by paragraphs (1) and (2) of section 114(a) of such Act;

(iii) the Commission has failed to issue the regula- tions required by section 115(a) of such Act;

(iv) the Commission has failed to complete and submit to Congress, not later than 18 months after the date of enactment of this subsection, a study of cur- rent and future spectrum needs of State and local gov- ernment public safety agencies through the year 2010, and a specific plan to ensure that adequate fre- quencies are made available to public safety licensees; or

(v) the Commission has failed under section 332(c)(3) to grant or deny within the time required by such section any petition that a State has filed within 90 days after the date of enactment of this subsection;

until such failure has been corrected. (11) TERMINATION.—The authority of the Commission to

grant a license or permit under this subsection shall expire September 30, 2022.

(12) EVALUATION.—Not later than September 30, 1997, the Commission shall conduct a public inquiry and submit to the Congress a report—

(A) containing a statement of the revenues obtained, and a projection of the future revenues, from the use of competitive bidding systems under this subsection;

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(B) describing the methodologies established by the Commission pursuant to paragraphs (3) and (4);

(C) comparing the relative advantages and disadvan- tages of such methodologies in terms of attaining the ob- jectives described in such paragraphs;

(D) evaluating whether and to what extent— (i) competitive bidding significantly improved the

efficiency and effectiveness of the process for granting radio spectrum licenses;

(ii) competitive bidding facilitated the introduction of new spectrum-based technologies and the entry of new companies into the telecommunications market;

(iii) competitive bidding methodologies have se- cured prompt delivery of service to rural areas and have adequately addressed the needs of rural spec- trum users; and

(iv) small businesses, rural telephone companies, and businesses owned by members of minority groups and women were able to participate successfully in the competitive bidding process; and (E) recommending any statutory changes that are

needed to improve the competitive bidding process. (13) RECOVERY OF VALUE OF PUBLIC SPECTRUM IN CONNEC-

TION WITH PIONEER PREFERENCES.— (A) IN GENERAL.—Notwithstanding paragraph (6)(G),

the Commission shall not award licenses pursuant to a preferential treatment accorded by the Commission to per- sons who make significant contributions to the develop- ment of a new telecommunications service or technology, except in accordance with the requirements of this para- graph.

(B) RECOVERY OF VALUE.—The Commission shall re- cover for the public a portion of the value of the public spectrum resource made available to such person by re- quiring such person, as a condition for receipt of the li- cense, to agree to pay a sum determined by—

(i) identifying the winning bids for the licenses that the Commission determines are most reasonably comparable in terms of bandwidth, scope of service area, usage restrictions, and other technical character- istics to the license awarded to such person, and ex- cluding licenses that the Commission determines are subject to bidding anomalies due to the award of pref- erential treatment;

(ii) dividing each such winning bid by the popu- lation of its service area (hereinafter referred to as the per capita bid amount);

(iii) computing the average of the per capita bid amounts for the licenses identified under clause (i);

(iv) reducing such average amount by 15 percent; and

(v) multiplying the amount determined under clause (iv) by the population of the service area of the license obtained by such person.

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(C) INSTALLMENTS PERMITTED.—The Commission shall require such person to pay the sum required by subpara- graph (B) in a lump sum or in guaranteed installment pay- ments, with or without royalty payments, over a period of not more than 5 years.

(D) RULEMAKING ON PIONEER PREFERENCES.—Except with respect to pending applications described in clause (iv) of this subparagraph, the Commission shall prescribe regulations specifying the procedures and criteria by which the Commission will evaluate applications for preferential treatment in its licensing processes (by precluding the fil- ing of mutually exclusive applications) for persons who make significant contributions to the development of a new service or to the development of new technologies that sub- stantially enhance an existing service. Such regulations shall—

(i) specify the procedures and criteria by which the significance of such contributions will be deter- mined, after an opportunity for review and verification by experts in the radio sciences drawn from among persons who are not employees of the Commission or by any applicant for such preferential treatment;

(ii) include such other procedures as may be nec- essary to prevent unjust enrichment by ensuring that the value of any such contribution justifies any reduc- tion in the amounts paid for comparable licenses under this subsection;

(iii) be prescribed not later than 6 months after the date of enactment of this paragraph;

(iv) not apply to applications that have been ac- cepted for filing on or before September 1, 1994; and

(v) cease to be effective on the date of the expira- tion of the Commission’s authority under subpara- graph (F). (E) IMPLEMENTATION WITH RESPECT TO PENDING APPLI-

CATIONS.—In applying this paragraph to any broadband li- censes in the personal communications service awarded pursuant to the preferential treatment accorded by the Federal Communications Commission in the Third Report and Order in General Docket 90–314 (FCC 93–550, re- leased February 3, 1994)—

(i) the Commission shall not reconsider the award of preferences in such Third Report and Order, and the Commission shall not delay the grant of licenses based on such awards more than 15 days following the date of enactment of this paragraph, and the award of such preferences and licenses shall not be subject to administrative or judicial review;

(ii) the Commission shall not alter the bandwidth or service areas designated for such licenses in such Third Report and Order;

(iii) except as provided in clause (v), the Commis- sion shall use, as the most reasonably comparable li- censes for purposes of subparagraph (B)(i), the

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broadband licenses in the personal communications service for blocks A and B for the 20 largest markets (ranked by population) in which no applicant has ob- tained preferential treatment;

(iv) for purposes of subparagraph (C), the Com- mission shall permit guaranteed installment payments over a period of 5 years, subject to—

(I) the payment only of interest on unpaid bal- ances during the first 2 years, commencing not later than 30 days after the award of the license (including any preferential treatment used in making such award) is final and no longer subject to administrative or judicial review, except that no such payment shall be required prior to the date of completion of the auction of the comparable li- censes described in clause (iii); and

(II) payment of the unpaid balance and inter- est thereon after the end of such 2 years in ac- cordance with the regulations prescribed by the Commission; and (v) the Commission shall recover with respect to

broadband licenses in the personal communications service an amount under this paragraph that is equal to not less than $400,000,000, and if such amount is less than $400,000,000, the Commission shall recover an amount equal to $400,000,000 by allocating such amount among the holders of such licenses based on the population of the license areas held by each li- censee.

The Commission shall not include in any amounts re- quired to be collected under clause (v) the interest on un- paid balances required to be collected under clause (iv).

(F) EXPIRATION.—The authority of the Commission to provide preferential treatment in licensing procedures (by precluding the filing of mutually exclusive applications) to persons who make significant contributions to the develop- ment of a new service or to the development of new tech- nologies that substantially enhance an existing service shall expire on the date of enactment of the Balanced Budget Act of 1997.

(G) EFFECTIVE DATE.—This paragraph shall be effec- tive on the date of its enactment and apply to any licenses issued on or after August 1, 1994, by the Federal Commu- nications Commission pursuant to any licensing procedure that provides preferential treatment (by precluding the fil- ing of mutually exclusive applications) to persons who make significant contributions to the development of a new service or to the development of new technologies that sub- stantially enhance an existing service. (14) AUCTION OF RECAPTURED BROADCAST TELEVISION SPEC-

TRUM.— (A) LIMITATIONS ON TERMS OF TERRESTRIAL TELEVISION

BROADCAST LICENSES.—A full-power television broadcast li- cense that authorizes analog television service may not be

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178Sec. 309 COMMUNICATIONS ACT OF 1934

renewed to authorize such service for a period that extends beyond June 12, 2009.

(B) SPECTRUM REVERSION AND RESALE.— (i) The Commission shall—

(I) ensure that, as licenses for analog tele- vision service expire pursuant to subparagraph (A), each licensee shall cease using electro- magnetic spectrum assigned to such service ac- cording to the Commission’s direction; and

(II) reclaim and organize the electromagnetic spectrum in a manner consistent with the objec- tives described in paragraph (3) of this subsection. (ii) Licensees for new services occupying spectrum

reclaimed pursuant to clause (i) shall be assigned in accordance with this subsection. (C) CERTAIN LIMITATIONS ON QUALIFIED BIDDERS PRO-

HIBITED.—In prescribing any regulations relating to the qualification of bidders for spectrum reclaimed pursuant to subparagraph (B)(i), the Commission, for any license that may be used for any digital television service where the grade A contour of the station is projected to encompass the entirety of a city with a population in excess of 400,000 (as determined using the 1990 decennial census), shall not—

(i) preclude any party from being a qualified bid- der for such spectrum on the basis of—

(I) the Commission’s duopoly rule (47 C.F.R. 73.3555(b)); or

(II) the Commission’s newspaper cross-owner- ship rule (47 C.F.R. 73.3555(d)); or (ii) apply either such rule to preclude such a party

that is a winning bidder in a competitive bidding for such spectrum from using such spectrum for digital television service.

(15) COMMISSION TO DETERMINE TIMING OF AUCTIONS.— (A) COMMISSION AUTHORITY.—Subject to the provisions

of this subsection (including paragraph (11)), but notwith- standing any other provision of law, the Commission shall determine the timing of and deadlines for the conduct of competitive bidding under this subsection, including the timing of and deadlines for qualifying for bidding; con- ducting auctions; collecting, depositing, and reporting reve- nues; and completing licensing processes and assigning li- censes.

(B) TERMINATION OF PORTIONS OF AUCTIONS 31 AND 44.—Except as provided in subparagraph (C), the Commis- sion shall not commence or conduct auctions 31 and 44 on June 19, 2002, as specified in the public notices of March 19, 2002, and March 20, 2002 (DA 02–659 and DA 02– 563).

not apply to the auction of—

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(I) the C-block of licenses on the bands of fre- quencies located at 710–716 megahertz, and 740– 746 megahertz; or

(II) the D-block of licenses on the bands of fre- quencies located at 716–722 megahertz. (ii) ELIGIBLE BIDDERS.—The entities that shall be

eligible to bid in the auction of the C-block and D- block licenses described in clause (i) shall be those en- tities that were qualified entities, and that submitted applications to participate in auction 44, by May 8, 2002, as part of the original auction 44 short form fil- ing deadline.

(iii) AUCTION DEADLINES FOR EXCEPTED BLOCKS.— Notwithstanding subparagraph (B), the auction of the C-block and D-block licenses described in clause (i) shall be commenced no earlier than August 19, 2002, and no later than September 19, 2002, and the pro- ceeds of such auction shall be deposited in accordance with paragraph (8) not later than December 31, 2002.

(iv) REPORT.—Within one year after the date of enactment of this paragraph, the Commission shall submit a report to Congress—

(I) specifying when the Commission intends to reschedule auctions 31 and 44 (other than the blocks excepted by clause (i)); and

(II) describing the progress made by the Com- mission in the digital television transition and in the assignment and allocation of additional spec- trum for advanced mobile communications serv- ices that warrants the scheduling of such auc- tions. (v) ADDITIONAL DEADLINES FOR RECOVERED ANA-

LOG SPECTRUM.—Notwithstanding subparagraph (B), the Commission shall conduct the auction of the li- censes for recovered analog spectrum by commencing the bidding not later than January 28, 2008, and shall deposit the proceeds of such auction in accordance with paragraph (8)(E)(ii) not later than June 30, 2008.

(vi) RECOVERED ANALOG SPECTRUM.—For purposes of clause (v), the term ‘‘recovered analog spectrum’’ means the spectrum between channels 52 and 69, in- clusive (between frequencies 698 and 806 megahertz, inclusive) reclaimed from analog television service broadcasting under paragraph (14), other than—

(I) the spectrum required by section 337 to be made available for public safety services; and

(II) the spectrum auctioned prior to the date of enactment of the Digital Television Transition and Public Safety Act of 2005.

(D) RETURN OF PAYMENTS.—Within one month after the date of enactment of this paragraph, the Commission shall return to the bidders for licenses in the A-block, B- block, and E-block of auction 44 the full amount of all up- front payments made by such bidders for such licenses.

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(16) SPECIAL AUCTION PROVISIONS FOR ELIGIBLE FRE- QUENCIES.—

(A) SPECIAL REGULATIONS.—The Commission shall re- vise the regulations prescribed under paragraph (4)(F) of this subsection to prescribe methods by which the total cash proceeds from any auction of eligible frequencies de- scribed in section 113(g)(2) of the National Telecommuni- cations and Information Administration Organization Act (47 U.S.C. 923(g)(2)) shall at least equal 110 percent of the total estimated relocation or sharing costs provided to the Commission pursuant to section 113(g)(4) of such Act.

(B) CONCLUSION OF AUCTIONS CONTINGENT ON MIN- IMUM PROCEEDS.—The Commission shall not conclude any auction of eligible frequencies described in section 113(g)(2) of such Act if the total cash proceeds attributable to such spectrum are less than 110 percent of the total es- timated relocation or sharing costs provided to the Com- mission pursuant to section 113(g)(4) of such Act. If the Commission is unable to conclude an auction for the fore- going reason, the Commission shall cancel the auction, re- turn within 45 days after the auction cancellation date any deposits from participating bidders held in escrow, and ab- solve such bidders from any obligation to the United States to bid in any subsequent reauction of such spec- trum.

(C) AUTHORITY TO ISSUE PRIOR TO DEAUTHORIZATION.— In any auction conducted under the regulations required by subparagraph (A), the Commission may grant a license assigned for the use of eligible frequencies prior to the ter- mination of an eligible Federal entity’s authorization. However, the Commission shall condition such license by requiring that the licensee cannot cause harmful inter- ference to such Federal entity until such entity’s author- ization has been terminated by the National Telecommuni- cations and Information Administration. (17) CERTAIN CONDITIONS ON AUCTION PARTICIPATION PRO-

HIBITED.— (A) IN GENERAL.—Notwithstanding any other provision

of law, the Commission may not prevent a person from participating in a system of competitive bidding under this subsection if such person—

(i) complies with all the auction procedures and other requirements to protect the auction process es- tablished by the Commission; and

(ii) either— (I) meets the technical, financial, character,

and citizenship qualifications that the Commission may require under section 303(l)(1), 308(b), or 310 to hold a license; or

(II) would meet such license qualifications by means approved by the Commission prior to the grant of the license.

(B) CLARIFICATION OF AUTHORITY.—Nothing in sub- paragraph (A) affects any authority the Commission has to

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181 Sec. 309COMMUNICATIONS ACT OF 1934

adopt and enforce rules of general applicability, including rules concerning spectrum aggregation that promote com- petition.

(k) BROADCAST STATION RENEWAL PROCEDURES.— (1) STANDARDS FOR RENEWAL.—If the licensee of a broad-

cast station submits an application to the Commission for re- newal of such license, the Commission shall grant the applica- tion if it finds, with respect to that station, during the pre- ceding term of its license—

(A) the station has served the public interest, conven- ience, and necessity;

(B) there have been no serious violations by the li- censee of this Act or the rules and regulations of the Com- mission; and

(C) there have been no other violations by the licensee of this Act or the rules and regulations of the Commission which, taken together, would constitute a pattern of abuse. (2) CONSEQUENCE OF FAILURE TO MEET STANDARD.—If any

licensee of a broadcast station fails to meet the requirements of this subsection, the Commission may deny the application for renewal in accordance with paragraph (3), or grant such ap- plication on terms and conditions as are appropriate, including renewal for a term less than the maximum otherwise per- mitted.

(3) STANDARDS FOR DENIAL.—If the Commission deter- mines, after notice and opportunity for a hearing as provided in subsection (e), that a licensee has failed to meet the require- ments specified in paragraph (1) and that no mitigating factors justify the imposition of lesser sanctions, the Commission shall—

(A) issue an order denying the renewal application filed by such licensee under section 308; and

(B) only thereafter accept and consider such applica- tions for a construction permit as may be filed under sec- tion 308 specifying the channel or broadcasting facilities of the former licensee. (4) COMPETITOR CONSIDERATION PROHIBITED.—In making

the determinations specified in paragraph (1) or (2), the Com- mission shall not consider whether the public interest, conven- ience, and necessity might be served by the grant of a license to a person other than the renewal applicant. (l) APPLICABILITY OF COMPETITIVE BIDDING TO PENDING COM-

PARATIVE LICENSING CASES.—With respect to competing applica- tions for initial licenses or construction permits for commercial radio or television stations that were filed with the Commission be- fore July 1, 1997, the Commission shall—

(1) have the authority to conduct a competitive bidding proceeding pursuant to subsection (j) to assign such license or permit;

(2) treat the persons filing such applications as the only persons eligible to be qualified bidders for purposes of such proceeding; and

(3) waive any provisions of its regulations necessary to per- mit such persons to enter an agreement to procure the removal

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182Sec. 310 COMMUNICATIONS ACT OF 1934

of a conflict between their applications during the 180-day period beginning on the date of enactment of the Balanced Budget Act of 1997.

SEC. 310. ø47 U.S.C. 310¿ LIMITATION ON HOLDING AND TRANSFER OF LICENSES.

(a) The station license required under this Act shall not be granted to or held by any foreign government or the representative thereof.

(b) No broadcast or common carrier or aeronautical en route or aeronautical fixed radio station license shall be granted to or held by—

(1) any alien or the representative of any alien; (2) any corporation organized under the laws of any for-

eign government; (3) any corporation of which more than one-fifth of the cap-

ital stock is owned of record or voted by aliens or their rep- resentatives or by a foreign government or representative thereof or by any corporation organized under the laws of a for- eign country;

(4) any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representa- tives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign coun- try, if the Commission finds that the public interest will be served by the refusal or revocation of such license. (c) In addition to amateur station licenses which the Commis-

sion may issue to aliens pursuant to this Act, the Commission may issue authorizations, under such conditions and terms as it may prescribe, to permit an alien licensed by his government as an amateur radio operator to operate his amateur radio station li- censed by his government in the United States, its possessions, and the Commonwealth of Puerto Rico provided there is in effect a mul- tilateral or bilateral agreement, to which the United States and the alien’s government are parties, for such operation on a reciprocal basis by United States amateur radio operators. Other provisions of this Act and of the Administrative Procedure Act shall not be ap- plicable to any request or application for or modification, suspen- sion, or cancellation of any such authorization.

(d) No construction permit or station license, or any rights thereunder, shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation holding such permit or li- cense, to any person except upon application to the Commission and upon finding by the Commission that the public interest, con- venience, and necessity will be served thereby. Any such applica- tion shall be disposed of as if the proposed transferee or assignee were making application under section 308 for the permit or license in question; but in acting thereon the Commission may not con- sider whether the public interest, convenience, and necessity might be served by the transfer, assignment, or disposal of the permit or license to a person other than the proposed transferee or assignee.

(e)(1) In the case of any broadcast station, and any ownership interest therein, which is excluded from the regional concentration

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183 Sec. 311COMMUNICATIONS ACT OF 1934

rules by reason of the savings provision for existing facilities pro- vided by the First Report and Order adopted March 9, 1977 (docket No. 20548; 42 Fed. Reg. 16145), the exclusion shall not terminate solely by reason of changes made in the technical facilities of the station to improve its service.

(2) For purposes of this subsection, the term ‘‘regional con- centration rules’’ means the provisions of sections 73.35, 73.240, and 73.636 of title 47, Code of Federal Regulations (as in effect June 1, 1983), which prohibit any party from directly or indirectly owning, operating, or controlling three broadcast stations in one or several services where any two of such stations are within 100 miles of the third (measured city-to-city), and where there is a pri- mary service contour overlap of any of the stations. SEC. 311. ø47 U.S.C. 311¿ SPECIAL REQUIREMENTS WITH RESPECT TO

CERTAIN APPLICATIONS IN THE BROADCASTING SERV- ICE.

(a) When there is filed with the Commission any application to which section 309(b)(1) applies, for an instrument of authorization for a station in the broadcasting service, the applicant—

(1) shall give notice of such filing in the principal area which is served or is to be served by the station; and

(2) if the application is formally designated for hearing in accordance with section 309, shall give notice of such hearing in such area at least ten days before commencement of such hearing.

The Commission shall by rule prescribe the form and content of the notices to be given in compliance with this subsection, and the manner and frequency with which such notices shall be given.

(b) Hearings referred to in subsection (a) may be held at such places as the Commission shall determine to be appropriate, and in making such determination in any case the Commission shall consider whether the public interest, convenience, or necessity will be served by conducting the hearing at a place in, or in the vicinity of, the principal area to be served by the station involved.

(c)(1) If there are pending before the Commission two or more applications for a permit for construction of a broadcasting station, only one of which can be granted, it shall be unlawful, without ap- proval of the Commission, for the applicants or any of them to ef- fectuate an agreement whereby one or more of such applicants withdraws his or their application or applications.

(2) The request for Commission approval in any such case shall be made in writing jointly by all the parties to the agreement. Such request shall contain or be accompanied by full information with respect to the agreement, set forth in such detail, form, and man- ner as the Commission shall by rule require.

(3) The Commission shall approve the agreement only if it de- termines that (A) the agreement is consistent with the public inter- est, convenience, or necessity; and (B) no party to the agreement filed its application for the purpose of reaching or carrying out such agreement.

(4) For the purposes of this subsection an application shall be deemed to be ‘‘pending’’ before the Commission from the time such application is filed with the Commission until an order of the Com-

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184Sec. 312 COMMUNICATIONS ACT OF 1934

mission granting or denying it is no longer subject to rehearing by the Commission or to review by any court.

(d)(1) If there are pending before the Commission an applica- tion for the renewal of a license granted for the operation of a broadcasting station and one or more applications for a construc- tion permit relating to such station, only one of which can be grant- ed, it shall be unlawful, without approval of the Commission, for the applicants or any of them to effectuate an agreement whereby one or more of such applicants withdraws his or their application or applications in exchange for the payment of money, or the trans- fer of assets or any other thing of value by the remaining applicant or applicants.

(4) For purposes of this subsection, an application shall be deemed to be pending before the Commission from the time such application is filed with the Commission until an order of the Com- mission granting or denying it is no longer subject to rehearing by the Commission or to review by any court. SEC. 312. ø47 U.S.C. 312¿ ADMINISTRATIVE SANCTIONS.

(a) The Commission may revoke any station license or con- struction permit—

(1) for false statements knowingly made either in the ap- plication or in any statement of fact which may be required pursuant to section 308;

(2) because of conditions coming to the attention of the Commission which would warrant it in refusing to grant a li- cense or permit on an original application;

(3) for willful or repeated failure to operate substantially as set forth in the license;

(4) for willful or repeated violation of, or willful or re- peated failure to observe any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States;

(5) for violation of or failure to observe any final cease and desist order issued by the Commission under this section;

(6) for violation of section 1304, 1343, or 1464 of title 18 of the United States Code; or

(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy. (b) Where any person (1) has failed to operate substantially as

set forth in a license, (2) has violated or failed to observe any of

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185 Sec. 312COMMUNICATIONS ACT OF 1934

1 5 U.S.C. 558(c)(1) and (2)

the provisions of this Act, or section 1304, 1343, or 1464 of title 18 of the United States Code, or (3) has violated or failed to observe any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States, the Commission may order such person to cease and desist from such action.

(c) Before revoking a license or permit pursuant to subsection (a), or issuing a cease and desist order pursuant to subsection (b), the Commission shall serve upon the licensee, permittee, or person involved an order to show cause why an order of revocation or a cease and desist order should not be issued. Any such order to show cause shall contain a statement of the matters with respect to which the Commission is inquiring and shall call upon said li- censee, permittee, or person to appear before the Commission at a time and place stated in the order, but in no event less than thirty days after the receipt of such order, and give evidence upon the matter specified therein; except that where safety of life or prop- erty is involved, the Commission may provide in the order for a shorter period. If after hearing, or a waiver thereof, the Commis- sion determines that an order of revocation or a cease and desist order should issue, it shall issue such order, which shall include a statement of the findings of the Commission and the grounds and reasons therefor and specify the effective date of the order, and shall cause the same to be served on said licensee, permittee, or person.

(d) In any case where a hearing is conducted pursuant to the provisions of this section, both the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Commission.

(e) The provisions of section 9(b) 1 of the Administrative Proce- dure Act which apply with respect to the institution of any pro- ceeding for the revocation of a license or permit shall apply also with respect to the institution, under this section, of any pro- ceeding for the issuance of a cease and desist order.

(f) For purposes of this section: (1) The term ‘‘willful’’, when used with reference to the

commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States.

(2) The term ‘‘repeated’’, when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day. (g) If a broadcasting station fails to transmit broadcast signals

for any consecutive 12-month period, then the station license grant- ed for the operation of that broadcast station expires at the end of that period, notwithstanding any provision, term, or condition of the license to the contrary, except that the Commission may extend or reinstate such station license if the holder of the station license prevails in an administrative or judicial appeal, the applicable law changes, or for any other reason to promote equity and fairness.

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186Sec. 313 COMMUNICATIONS ACT OF 1934

Any broadcast license revoked or terminated in Alaska in a pro- ceeding related to broadcasting via translator, microwave, or other alternative signal delivery is reinstated. SEC. 313. ø47 U.S.C. 313¿ APPLICATION OF ANTITRUST LAWS; REFUSAL

OF LICENSES AND PERMITS IN CERTAIN CASES. (a) All laws of the United States relating to unlawful restraints

and monopolies and to combinations, contracts or agreements in re- straint of trade are hereby declared to be applicable to the manu- facture and sale of and to trade in radio apparatus and devices en- tering into or affecting interstate or foreign commerce and to inter- state or foreign radio communications. Whenever in any suit, ac- tion, or proceeding, civil or criminal, brought under the provisions of any of said laws or in any proceedings brought to enforce or to review findings and orders of the Federal Trade Commission or other governmental agency in respect of any matters as to which said Commission or other governmental agency is by law author- ized to act, any licensee shall be found guilty of the violation of the provisions of such laws or any of them, the court, in addition to the penalties imposed by said laws, may adjudge, order, and/or decree that the license of such licensee shall, as of the date the decree or judgment becomes finally effective or as of such date as the said decree shall fix, be revoked and that all rights under such license shall thereupon cease: Provided, however, That such licensee shall have the same right of appeal or review, as is provided by law in respect of other decrees and judgments of said court.

(b) The Commission is hereby directed to refuse a station li- cense and/or the permit hereinafter required for the construction of a station to any person (or to any person directly or indirectly con- trolled by such person) whose license has been revoked by a court under this section. SEC. 314. ø47 U.S.C. 314¿ PRESERVATION OF COMPETITION IN COM-

MERCE. After the effective date of this Act no person engaged directly,

or indirectly through any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such person, or through an agent, or otherwise, in the business of trans- mitting and/or receiving for hire energy, communications, or sig- nals by radio in accordance with the terms of the license issued under this Act, shall by purchase, lease, construction, or otherwise, directly or indirectly, acquire, own, control, or operate any cable or wire telegraph or telephone line or system between any place in any State, Territory, or possession of the United States or in the District of Columbia, and any place in any foreign country, or shall acquire, own, or control any part of the stock or other capital share or any interest in the physical property and/or other assets of any such cable, wire, telegraph, or telephone line or system, if in either case the purpose is and/or the effect thereof may be to substantially lessen competition or to restrain commerce between any place in any State, Territory, or possession of the United States, or in the District of Columbia, and any place in any foreign country, or un- lawfully to create monopoly in any line of commerce; nor shall any person engaged directly, or indirectly through any person directly or indirectly controlling or controlled by, or under direct or indirect

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187 Sec. 315COMMUNICATIONS ACT OF 1934

common control with, such person, or through an agent, or other- wise, in the business of transmitting and/or receiving for hire mes- sages by any cable, wire, telegraph, or telephone line or system (a) between any place in any State, Territory, or possession of the United States, or in the District of Columbia, and any place in any other State, Territory, or possession of the United States; or (b) be- tween any place in any State, Territory, or possession of the United States, or in the District of Columbia, and any place in any foreign country, by purchase, lease, construction, or otherwise, directly or indirectly acquire, own, control, or operate any station or the appa- ratus therein, or any system for transmitting and/or receiving radio communications or signals between any place in any State, Terri- tory, or possession of the United States, or in the District of Colum- bia, and any place in any foreign country, or shall acquire, own, or control any part of the stock or other capital share of any interest in the physical property and/or other assets of any such radio sta- tion, apparatus, or system, if in either case, the purpose is and/or the effect thereof may be to substantially lessen competition or to restrain commerce between any place in any State, Territory, or possession of the United States, or in the District of Columbia, and any place in any foreign country, or unlawfully to create monopoly in any line of commerce. SEC. 315. ø47 U.S.C. 315¿ FACILITIES FOR CANDIDATES FOR PUBLIC

OFFICE. (a) If any licensee shall permit any person who is a legally

qualified candidate for any public office to use a broadcasting sta- tion, he shall afford equal opportunities to all other such can- didates for that office in the use of such broadcasting station: Pro- vided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obli- gation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any—

(1) bona fide newscast, (2) bona fide news interview, (3) bona fide news documentary (if the appearance of the

candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

(4) on-the-spot coverage of bona fide news events (includ- ing but not limited to political conventions and activities inci- dental thereto),

shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the pres- entation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

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188Sec. 315 COMMUNICATIONS ACT OF 1934

1 The Bipartisan Campaign Reform Act of 2002 (PL 107–155) amended section 315 of the Com- munications Act of 1934. Section 201(b) of the Bipartisan Campaign Reform Act of 2002 con- tained the following provision:

(b) ø2 U.S.C. 434 note¿ RESPONSIBILITIES OF FEDERAL COMMUNICATIONS COMMISSION.—The Federal Communications Commission shall compile and maintain any information the Federal Election Commission may require to carry out section 304(f) of the Federal Election Campaign Act of 1971 (as added by subsection (a)), and shall make such information available to the public on the Federal Communication Commission’s website.

(b) 1 CHARGES.— (1) IN GENERAL.—The charges made for the use of any

broadcasting station by any person who is a legally qualified candidate for any public office in connection with his campaign for nomination for election, or election, to such office shall not exceed—

(A) subject to paragraph (2), during the forty-five days pre- ceding the date of a primary or primary runoff election and during the sixty days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the station for the same class and amount of time for the same period; and

(B) at any other time, the charges made for comparable use of such station by other users thereof.

(2) CONTENT OF BROADCASTS.— (A) IN GENERAL.—In the case of a candidate for Fed-

eral office, such candidate shall not be entitled to receive the rate under paragraph (1)(A) for the use of any broad- casting station unless the candidate provides written cer- tification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same of- fice, in any broadcast using the rights and conditions of ac- cess under this Act, unless such reference meets the re- quirements of subparagraph (C) or (D).

(B) LIMITATION ON CHARGES.—If a candidate for Fed- eral office (or any authorized committee of such candidate) makes a reference described in subparagraph (A) in any broadcast that does not meet the requirements of subpara- graph (C) or (D), such candidate shall not be entitled to re- ceive the rate under paragraph (1)(A) for such broadcast or any other broadcast during any portion of the 45-day and 60-day periods described in paragraph (1)(A), that occur on or after the date of such broadcast, for election to such of- fice.

(C) TELEVISION BROADCASTS.—A candidate meets the requirements of this subparagraph if, in the case of a tele- vision broadcast, at the end of such broadcast there ap- pears simultaneously, for a period no less than 4 seconds—

(i) a clearly identifiable photographic or similar image of the candidate; and

(ii) a clearly readable printed statement, identi- fying the candidate and stating that the candidate has approved the broadcast and that the candidate’s au- thorized committee paid for the broadcast. (D) RADIO BROADCASTS.—A candidate meets the re-

quirements of this subparagraph if, in the case of a radio

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189 Sec. 315COMMUNICATIONS ACT OF 1934

1 Effective November 6, 2002, section 504 of the Bipartisan Campaign Reform Act of 2002 (P.L. 107–155; 116 Stat. 115) amends section 315 by redesignating subsections (e) and (f) as sub- sections (f) and (g), respectively, and inserting after subsection (d) a new subsection (e), shown above. The amendment probably should have been to insert subsection (e) at the end of section 315, since subsections (e) and (f) do not appear in law.

broadcast, the broadcast includes a personal audio state- ment by the candidate that identifies the candidate, the of- fice the candidate is seeking, and indicates that the can- didate has approved the broadcast.

(E) CERTIFICATION.—Certifications under this section shall be provided and certified as accurate by the can- didate (or any authorized committee of the candidate) at the time of purchase.

(F) DEFINITIONS.—For purposes of this paragraph, the terms ‘‘authorized committee’’ and ‘‘Federal office’’ have the meanings given such terms by section 301 of the Fed- eral Election Campaign Act of 1971 (2 U.S.C. 431).

antenna television system; and (2) the term ‘‘licensee’’ and ‘‘station licensee’’ when used

with respect to a community antenna television system mean the operator of such system. (d) The Commission shall prescribe appropriate rules and regu-

lations to carry out the provisions of this section. (e) 1 POLITICAL RECORD.—

(1) IN GENERAL.—A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that—

(A) is made by or on behalf of a legally qualified can- didate for public office; or

(B) communicates a message relating to any political matter of national importance, including—

(i) a legally qualified candidate; (ii) any election to Federal office; or (iii) a national legislative issue of public impor-

tance. (2) CONTENTS OF RECORD.—A record maintained under

paragraph (1) shall contain information regarding— (A) whether the request to purchase broadcast time is

accepted or rejected by the licensee; (B) the rate charged for the broadcast time; (C) the date and time on which the communication is

aired; (D) the class of time that is purchased; (E) the name of the candidate to which the commu-

nication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);

(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such com- mittee; and

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190Sec. 316 COMMUNICATIONS ACT OF 1934

(G) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. (3) TIME TO MAINTAIN FILE.—The information required

under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.

SEC. 316. ø47 U.S.C. 316¿ MODIFICATION BY COMMISSION OF CON- STRUCTION PERMITS OR LICENSES.

(a)(1) Any station license or construction permit may be modi- fied by the Commission either for a limited time or for the duration of the term thereof, if in the judgment of the Commission such ac- tion will promote the public interest, convenience, and necessity, or the provisions of this Act or of any treaty ratified by the United States will be more fully complied with. No such order of modifica- tion shall become final until the holder of the license or permit shall have been notified in writing of the proposed action and the grounds and reasons therefor, and shall be given reasonable oppor- tunity, of at least thirty days, to protest such proposed order of modification; except that, where safety of life or property is in- volved, the Commission may by order provide, for a shorter period of notice.

(2) Any other licensee or permittee who believes its license or permit would be modified by the proposed action may also protest the proposed action before its effective date.

(3) A protest filed pursuant to this subsection shall be subject to the requirements of section 309 for petitions to deny.

(b) In any case where a hearing is conducted pursuant to the provisions of this section, both the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Commission; except that, with respect to any issue that addresses the question of whether the proposed action would modify the li- cense or permit of a person described in subsection (a)(2), such bur- dens shall be as determined by the Commission. SEC. 317. ø47 U.S.C. 317¿ ANNOUNCEMENT WITH RESPECT TO CERTAIN

MATTER BROADCAST. (a)(1) All matter broadcast by any radio station for which any

money, service or other valuable consideration is directly or indi- rectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person, shall, at the time the same is so broadcast, be announced as paid for or furnished, as the case may be, by such person: Provided, That ‘‘service or other valuable con- sideration’’ shall not include any service or property furnished without charge or at a nominal charge for use on, or in connection with, a broadcast unless it is so furnished in consideration for an identification in a broadcast of any person, product, service, trade- mark, or brand name beyond an identification which is reasonably related to the use of such service or property on the broadcast.

(2) Nothing in this section shall preclude the Commission from requiring that an appropriate announcement shall be made at the time of the broadcast in the case of any political program or any

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191 Sec. 319COMMUNICATIONS ACT OF 1934

program involving the discussion of any controversial issue for which any films, records, transcriptions, talent, scripts, or other material or service of any kind have been furnished, without charge or at a nominal charge, directly or indirectly, as an induce- ment to the broadcast of such program.

(b) In any case where a report has been made to a radio sta- tion, as required by section 507 of this Act, of circumstances which would have required an announcement under this section had the consideration been received by such radio station, an appropriate announcement shall be made by such radio station.

(c) The licensee of each radio station shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make the announcement required by this section.

(d) The Commission may waive the requirement of an an- nouncement as provided in this section in any case or class of cases with respect to which it determines that the public interest, con- venience, or necessity does not require the broadcasting of such an- nouncement.

(e) The Commission shall prescribe appropriate rules and regu- lations to carry out the provisions of this section. SEC. 318. ø47 U.S.C. 318¿ OPERATION OF TRANSMITTING APPARATUS.

The actual operation of all transmitting apparatus in any radio station for which a station license is required by this Act shall be carried on only by a person holding an operator’s license issued hereunder, and no person shall operate any such apparatus in such station except under and in accordance with an operator’s license issued to him by the Commission: Provided, however, That the Commission if it shall find that the public interest, convenience, or necessity will be served thereby may waive or modify the foregoing provisions of this section for the operation of any station except (1) stations for which licensed operators are required by international agreement, (2) stations for which licensed operators are required for safety purposes, and (3) stations operated as common carriers on frequencies below thirty thousand kilocycles: Provided further, That the Commission shall have power to make special regulations governing the granting of licenses for the use of automatic radio de- vices and for the operation of such devices. SEC. 319. ø47 U.S.C. 319¿ CONSTRUCTION PERMITS.

(a) No license shall be issued under the authority of this Act for the operation of any station unless a permit for its construction has been granted by the Commission. The application for a con- struction permit shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and the financial, technical, and other ability of the applicant to construct and operate the station, the ownership and location of the proposed station and of the station or stations with which it is proposed to communicate, the frequencies desired to be used, the hours of the day or other periods of time during which it is proposed to operate the station, the purpose for which the station is to be used, the type of transmitting apparatus to be used, the power to be used, the date upon which the station is expected to be completed and

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192Sec. 320 COMMUNICATIONS ACT OF 1934

in operation, and such other information as the Commission may require. Such application shall be signed by the applicant in any manner or form, including by electronic means, as the Commission may prescribe by regulation.

(b) Such permit for construction shall show specifically the ear- liest and latest dates between which the actual operation of such station is expected to begin, and shall provide that said permit will be automatically forfeited if the station is not ready for operation within the time specified or within such further time as the Com- mission may allow, unless prevented by causes not under the con- trol of the grantee.

(c) Upon the completion of any station for the construction or continued construction of which a permit has been granted, and upon it being made to appear to the Commission that all the terms, conditions, and obligations set forth in the application and permit have been fully met, and that no cause or circumstance arising or first coming to the knowledge of the Commission since the granting of the permit would, in the judgment of the Commission, make the operation of such station against the public interest, the Commis- sion shall issue a license to the lawful holder of said permit for the operation of said station. Said license shall conform generally to the terms of said permit. The provisions of section 309 (a), (b), (c), (d), (e), (f), and (g) shall not apply with respect any station license the issuance of which is provided for and governed by the provi- sions of this subsection.

(d) A permit for construction shall not be required for Govern- ment stations, amateur stations, or mobile stations. A permit for construction shall not be required for public coast stations, pri- vately owned fixed microwave stations, or stations licensed to com- mon carriers, unless the Commission determines that the public in- terest, convenience, and necessity would be served by requiring such permits for any such stations. With respect to any broad- casting station, the Commission shall not have any authority to waive the requirement of a permit for construction, except that the Commission may by regulation determine that a permit shall not be required for minor changes in the facilities of authorized broad- cast stations. With respect to any other station or class of stations, the Commission shall not waive the requirement for a construction permit unless the Commission determines that the public interest, convenience, and necessity would be served by such a waiver. SEC. 320. ø47 U.S.C. 320¿ DESIGNATION OF STATIONS LIABLE TO INTER-

FERE WITH DISTRESS SIGNALS. The Commission is authorized to designate from time to time

radio stations the communications or signals of which, in its opin- ion, are liable to interfere with the transmission or reception of dis- tress signals of ships. Such stations are required to keep a licensed radio operator listening in on the frequencies designated for signals of distress and radio communications relating thereto during the entire period the transmitter of such station is in operation. SEC. 321. ø47 U.S.C. 321¿ DISTRESS SIGNALS AND COMMUNICATIONS.

(a) The transmitting set in a radio station on shipboard may be adjusted in such a manner as to produce a maximum of radi- ation, irrespective of the amount of interference which may thus be

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193 Sec. 325COMMUNICATIONS ACT OF 1934

caused, when such station is sending radio communications or sig- nals of distress and radio communications relating thereto.

(b) All radio stations, including Government stations and sta- tions on board foreign vessels when within the territorial waters of the United States, shall give absolute priority to radio communica- tions or signals relating to ships in distress; shall cease all sending on frequencies which will interfere with hearing a radio commu- nication or signal of distress, and, except when engaged in answer- ing or aiding the ship in distress, shall refrain from sending any radio communications or signals until there is assurance that no interference will be caused with the radio communications or sig- nals relating thereto, and shall assist the vessel in distress, so far as possible, by complying with its instructions. SEC. 322. ø47 U.S.C. 322¿ INTERCOMMUNICATION IN MOBILE SERVICE.

Every land station open to general public service between the coast and vessels or aircraft at sea shall, within the scope of its normal operations, be bound to exchange radio communications or signals with any ship or aircraft station at sea; and each station on shipboard or aircraft at sea shall, within the scope of its normal operations, be bound to exchange radio communications or signals with any other station on shipboard or aircraft at sea or with any land station open to general public service between the coast and vessels or aircraft at sea: Provided, That such exchange of radio communication shall be without distinction as to radio systems or instruments adopted by each station. SEC. 323. ø47 U.S.C. 323¿ INTERFERENCE BETWEEN GOVERNMENT AND

COMMERCIAL STATIONS. (a) At all places where Government and private or commercial

radio stations on land operate in such close proximity that inter- ference with the work of Government stations cannot be avoided when they are operating simultaneously, such private or commer- cial stations as do interfere with the transmission or reception of radio communications or signals by the Government stations con- cerned shall not use their transmitters during the first fifteen min- utes of each hour, local standard time.

(b) The Government stations for which the above-mentioned di- vision of time is established shall transmit radio communications or signals only during the first fifteen minutes of each hour, local standard time, except in case of signals or radio communications relating to vessels in distress and vessel requests for information as to course, location, or compass direction. SEC. 324. ø47 U.S.C. 324¿ USE OF MINIMUM POWER.

In all circumstances, except in case of radio communications or signals relating to vessels in distress, all radio stations, including those owned and operated by the United States, shall use the min- imum amount of power necessary to carry out the communication desired. SEC. 325. ø47 U.S.C. 325¿ FALSE DISTRESS SIGNALS; REBROADCASTING;

STUDIOS OF FOREIGN STATIONS. (a) No person within the jursidiction of the United States shall

knowingly utter or transmit, or cause to be uttered or transmitted, any false or fraudulent signals of distress, or communication relat- ing thereto, nor shall any broadcasting station rebroadcast the pro-

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194Sec. 325 COMMUNICATIONS ACT OF 1934

gram or any part thereof of another broadcasting station without the express authority of the originating station.

(b)(1) No cable system or other multichannel video program- ming distributor shall retransmit the signal of a broadcasting sta- tion, or any part thereof, except—

(A) with the express authority of the originating station; (B) under section 614, 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, 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 tele- vision 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, United States Code; 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 Act; (C) until December 31, 2014, to retransmission of the sig-

nals 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 multi-

channel 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, United States Code; or (E) during the 6-month period beginning on the date of the

enactment of the Satellite Home Viewer Improvement Act of 1999, to the retransmission of the signal of a television broad- cast station within the station’s local market by a satellite car- rier directly to its subscribers under the statutory license of section 122 of title 17, United States Code.

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, United States Code, as in effect on the date of the enactment of the Cable Television Consumer Protection and Competition Act of 1992, the term ‘‘unserved household’’ has the meaning given that term under section 119(d) of such title, and

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the term ‘‘local market’’ has the meaning given that term in section 122( j) of such title.

(3)(A) Within 45 days after the date of enactment of the Cable Television Consumer Protection and Competition Act of 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 614, 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 sub- section do not conflict with the Commission’s obligation under sec- tion 623(b)(1) to ensure that the rates for the basic service tier are reasonable. Such rulemaking proceeding shall be completed within 180 days after the date of enactment of the Cable Television Con- sumer Protection and Competition Act of 1992.

(B) The regulations required by subparagraph (A) shall require that television stations, within one year after the date of enactment of the Cable Television Consumer Protection and Competition Act of 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 614. If there is more than one cable system which services the same geographic area, a sta- tion’s election shall apply to all such cable systems.

(C) The Commission shall commence a rulemaking proceeding to revise the regulations governing the exercise by television broad- cast stations of the right to grant retransmission consent under this subsection, and such other regulations as are necessary to ad- minister the limitations contained in paragraph (2). Such regula- tions shall—

(i) establish election time periods that correspond with those regulations adopted under subparagraph (B) of this para- graph;

(ii) until January 1, 2015, 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 con- sent agreements containing different terms and conditions, in- cluding price terms, with different multichannel video pro- gramming distributors if such different terms and conditions are based on competitive marketplace considerations; and

(iii) 1 until January 1, 2015, prohibit a multi- channel video programming distributor from failing to negotiate in good faith for retransmission consent under this section, and it shall not be a failure to ne- gotiate in good faith if the distributor enters into re- transmission consent agreements containing different terms and conditions, including price terms, with dif- ferent broadcast stations if such different terms and conditions are based on competitive marketplace con- siderations.

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196Sec. 325 COMMUNICATIONS ACT OF 1934

1 Margin so in law.

(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 sec- tion 614 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 shall not apply to the carriage of the signal of such sta- tion 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, 614, or 615 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, United States Code, or as affecting existing or future video pro- gramming licensing agreements between broadcasting stations and video programmers.

(7) 1 For purposes of this subsection, the term— (A) ‘‘network station’’ has the meaning given such

term under section 119(d) of title 17, United States Code; and

(B) ‘‘television broadcast station’’ means an over-the- air commercial or noncommercial television broadcast sta- tion 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 tele- vision station.

(c) 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 me- chanical 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 consist- ently in the United States, without first obtaining a permit from the Commission upon proper application therefor.

(d) 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 hereof 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 re- quired or when the Commission, after hearings, shall find its con- tinuation no longer in the public interest.

(e) ENFORCEMENT PROCEEDINGS AGAINST SATELLITE CARRIERS CONCERNING RETRANSMISSIONS OF TELEVISION BROADCAST STA- TIONS 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 sub-

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section (b)(2)(E) 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), 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 oc-

curred; (D) the street address of at least one person in the

local market of the station to whom the alleged retrans- mission was made;

(E) a statement that the retransmission was not ex- pressly 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 sta- tion may serve a satellite carrier with a complaint concerning an alleged violation of subsection (b)(1) 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 de- livery 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 pack- aging. 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 tele- vision 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 busi- ness days after the date of service, the satellite carrier shall file an answer with the Commission and shall serve the an- swer 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 sat- ellite carrier against which a complaint under this sub- section is filed.

(B) DEFENSES.—The defenses referred to under sub- paragraph (A) are the defenses that—

(i) the satellite carrier did not retransmit the tele- vision broadcast station to any person in the local market of the station during the time period specified in the complaint;

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198Sec. 325 COMMUNICATIONS ACT OF 1934

(ii) the television broadcast station had, in a writ- ing signed by an officer of the television broadcast sta- tion, 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) 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 as against the satellite carrier for the relevant period; or

(iv) the station being retransmitted is a non- commercial television broadcast station.

(5) COUNTING OF VIOLATIONS.—The retransmission without consent of a particular television broadcast station on a par- ticular day to one or more persons in the local market of the station shall be considered a separate violation of subsection (b)(1).

(6) BURDEN OF PROOF.—With respect to each alleged viola- tion, the burden of proof shall be on a television broadcast sta- tion 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 sat- ellite carrier with respect to all defenses other than the defense under paragraph (4)(B)(i).

(7) PROCEDURES.— (A) REGULATIONS.—Within 60 days after the date of

the enactment of the Satellite Home Viewer Improvement Act of 1999, the Commission shall issue procedural regula- tions implementing this subsection which shall supersede procedures under section 312.

(B) DETERMINATIONS.— (i) IN GENERAL.—Within 45 days after the filing of

a complaint, the Commission shall issue a final deter- mination in any proceeding brought under this sub- section. The Commission’s final determination shall specify the number of violations committed by the sat- ellite 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 ma- terial facts. Except as provided in the preceding sen- tence, 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 nec- essary to take prehearing depositions, on such sched- ule 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

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199 Sec. 325COMMUNICATIONS ACT OF 1934

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 Com- mission shall be required to—

(A) make a finding that the satellite carrier violated subsection (b)(1) 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 re- transmissions 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) with respect to such station;

(ii) if the satellite carrier is found to have violated subsection (b)(1) with respect to more than two tele- vision broadcast stations, a cease-and-desist order di- recting 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 compli- ance with subsection (b)(1) with respect to such sta- tions; and

(iii) an award to the complainant of that complain- ant’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 Commis- sion; 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 revers- ing 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 ju- risdiction over the satellite carrier if the carrier, or a com- pany 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 Dis- trict of Columbia, which may find personal jurisdiction based on the satellite carrier’s ownership of licenses issued

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200Sec. 325 COMMUNICATIONS ACT OF 1934

by the Commission. An application by a television broad- cast station for an order enforcing any cease-and-desist re- lief 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 ju- risdiction 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 sub- section. Such action shall not be subject to transfer under sec- tion 1404(a) of title 28, United States Code. On finding that the satellite carrier has committed one or more violations of subsection (b), 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 sta- tion 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 exclu- sive, and the burden of proof shall be on the satellite carrier with respect to all defenses other than the defense under para- graph (4)(B)(i). A judgment under this paragraph may be en- forced 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 Ap- peals may believe appropriate.

(B) APPEAL.—If the Commission denies relief in re- sponse to a complaint filed by a television broadcast sta- tion under this subsection, the television broadcast station filing the complaint may file an appeal with the United

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201 Sec. 329COMMUNICATIONS ACT OF 1934

States Court of Appeals for the District of Columbia Cir- cuit. (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.

SEC. 326. ø47 U.S.C. 326¿ CENSORSHIP; INDECENT LANGUAGE. Nothing in this Act shall be understood or construed to give

the Commission the power of censorship over the radio communica- tions or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication. SEC. 327. ø47 U.S.C. 327¿ USE OF NAVAL STATIONS FOR COMMERCIAL

MESSAGES. The Secretary of the Navy is hereby authorized, unless re-

strained by international agreement, under the terms and condi- tions and at rates prescribed by him, which rates shall be just and reasonable, and which, upon complaint, shall be subject to review and revision by the Commission, to use all radio stations and appa- ratus, wherever located, owned by the United States and under the control of the Navy Department, (a) for the reception and trans- mission of press messages offered by any newspaper published in the United States, its Territories or possessions, or published by citizens of the United States in foreign countries, or by any press association of the United States, and (b) for the reception and transmission of private commercial messages between ships, be- tween ship and shore, between localities in Alaska and between Alaska and the continental United States: Provided, That the rates fixed for the reception and transmission of all such messages, other than press messages between the Pacific coast of the United States, Hawaii, Alaska, Guam, American Samoa, and the Orient, and be- tween the United States and the Virgin Islands, shall not be less than the rates charged by privately owned and operated stations for like messages and service: Provided further, That the right to use such stations for any of the purposes named in this section shall terminate and cease as between any countries or localities or between any locality and privately operated ships whenever pri- vately owned and operated stations are capable of meeting the nor- mal communication requirements between such countries or local- ities or between any locality and privately operated ships, and the Commission shall have notified the Secretary of the Navy thereof.

øSection 328 was repealed by Public Law 103–414, section 304(a)(10), 108 Stat. 4296–7.¿ SEC. 329. ø47 U.S.C. 329¿ ADMINISTRATION OF RADIO LAWS IN TERRI-

TORIES AND POSSESSIONS. The Commission is authorized to designate any officer or em-

ployee of any other department of the Government on duty in any Territory or possession of the United States to render therein such service in connection with the administration of this Act as the Commission may prescribe and also to designate any officer or em- ployee of any other department of the Government to render such services at any place within the United States in connection with

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202Sec. 330 COMMUNICATIONS ACT OF 1934

the administration of title III of this Act as may be necessary: Pro- vided, That such designation shall be approved by the head of the department in which such person is employed. SEC. 330. ø47 U.S.C. 330¿ PROHIBITION AGAINST SHIPMENT OF CER-

TAIN TELEVISION RECEIVERS. (a) No person shall ship in interstate commerce, or import from

any foreign country into the United States, for sale or resale to the public, apparatus described in paragraph (s) of section 303 unless it complies with rules prescribed by the Commission pursuant to the authority granted by that paragraph: Provided, That this sec- tion shall not apply to carriers transporting such apparatus with- out trading in it.

(b) No person shall ship in interstate commerce, manufacture, assemble, or import from any foreign country into the United States, any apparatus described in section 303(u) and (z) of this Act except in accordance with rules prescribed by the Commission pur- suant to the authority granted by that section. Such rules shall provide performance and display standards for such built-in de- coder circuitry or capability designed to display closed captioned video programming, the transmission and delivery of video descrip- tion services, and the conveyance of emergency information as re- quired by section 303 of this Act. Such rules shall further require that all such apparatus be able to receive and display closed cap- tioning which have been transmitted by way of line 21 of the vertical blanking interval and which conform to the signal and dis- play specifications set forth in the Public Broadcasting System en- gineering report numbered E–7709–C dated May 1980, as amended by the Telecaption II Decoder Module Performance Specification published by the National Captioning Institute, November 1985. As new video technology is developed, the Commission shall take such action as the Commission determines appropriate to ensure that closed-captioning service and video description service continue to be available to consumers. This subsection shall not apply to car- riers transporting such apparatus without trading it.

(c)(1) Except as provided in paragraph (2), no person shall ship in interstate commerce or manufacture in the United States any apparatus described in section 303(x) of this Act except in accord- ance with rules prescribed by the Commission pursuant to the au- thority granted by that section.

(2) This subsection shall not apply to carriers transporting ap- paratus referred to in paragraph (1) without trading in it.

(3) The rules prescribed by the Commission under this sub- section shall provide for the oversight by the Commission of the adoption of standards by industry for blocking technology. Such rules shall require that all such apparatus be able to receive the rating signals which have been transmitted by way of line 21 of the vertical blanking interval and which conform to the signal and blocking specifications established by industry under the super- vision of the Commission.

(4) As new video technology is developed, the Commission shall take such action as the Commission determines appropriate to en- sure that blocking service continues to be available to consumers. If the Commission determines that an alternative blocking technology exists that—

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203 Sec. 331COMMUNICATIONS ACT OF 1934

1 Former section 331 was added by Public Law 93–107, 87 Stat. 350, Sept. 14, 1973. The stat- ute also set a date (Dec. 31, 1975) when the provision was to be repealed. The former section 331 read as follows:

BROADCAST OF GAMES OF PROFESSIONAL SPORTS CLUBS

SEC. 331. (a) If any game of a professional sports club is to be broadcast by means of television pursuant to a league television contract and all tickets of admission for seats of such game which were available for purchase by the general public one hundred and twenty hours or more before the scheduled beginning time of such game have been purchased seventy-two hours or more before such time, no agreement which would prevent the broadcasting by means of television of such game at the same time and in the area in which such game is being played shall be valid or have any force or effect. The right to broadcast such game by means of television at such time and in such area shall be made available, by the person or persons having such right, to a tele- vision broadcast licensee on reasonable terms and conditions unless the broadcasting by means of television of such game at such time and in such area would be a telecasting which section 3 of Public Law 87–331, as amended (15 U.S.C. 1293), is intended to prevent.

(b) If any person violates subsection (a) of this section, any interested person may commence a civil action for injunctive relief restraining such violation in any United States district court for a district in which the defendant resides or has an agent. In any such action, the court may award the cost of the suit including reasonable attorneys’ fees.

(c) For the purpose of this section: (1) The term ‘‘professional sports club’’ includes any professional football, baseball, basket-

ball, or hockey club. (2) The term ‘‘league television contract’’ means any joint agreement by or among profes-

sional sports clubs by which any league of such clubs sells or otherwise transfers all or any part of the rights of such league’s member clubs in the sponsored telecasting of the games engaged in or conducted by such clubs.

Continued

(A) enables parents to block programming based on identi- fying programs without ratings,

(B) is available to consumers at a cost which is comparable to the cost of technology that allows parents to block program- ming based on common ratings, and

(C) will allow parents to block a broad range of programs on a multichannel system as effectively and as easily as tech- nology that allows parents to block programming based on common ratings,

the Commission shall amend the rules prescribed pursuant to sec- tion 303(x) to require that the apparatus described in such section be equipped with either the blocking technology described in such section or the alternative blocking technology described in this paragraph.

(d) For the purposes of this section, and sections 303(s), 303(u), and 303(x)—

(1) The term ‘‘interstate commerce’’ means (A) commerce between any State, the District of Columbia, the Common- wealth of Puerto Rico, or any possession of the United States and any place outside thereof which is within the United States, (B) commerce between points in the same State, the District of Columbia, the Commonwealth of Puerto Rico, or possession of the United States but through any place outside thereof, or (C) commerce wholly within the District of Colum- bia or any possession of the United States.

(2) The term ‘‘United States’’ means the several States, the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States, but does not include the Canal Zone.

SEC. 331. 1 ø47 U.S.C. 331¿ VERY HIGH FREQUENCY STATIONS AND AM RADIO STATIONS.

(a) VERY HIGH FREQUENCY STATIONS.—It shall be the policy of the Federal Communications Commission to allocate channels for

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204Sec. 332 COMMUNICATIONS ACT OF 1934

(3) The term ‘‘agreement’’ includes any contract, arrangement, or other understanding. (4) The term ‘‘available for purchase by the general public’’, when used with respect to tick-

ets of admission for seats at a game or games to be played by a professional sports club, means only those tickets on sale at the stadium where such game or games are to be played, or, if such tickets are not sold at such stadium, only those tickets on sale at the box office closest to such stadium.

(d) The Commission shall conduct a continuing study of the effect of this section and shall, not later than April 15 of each year, submit a report to the Committee on Commerce of the Senate and the Committee on Interstate and Foreign Commerce of the House of Representatives with re- spect thereto. Such report shall include pertinent statistics and data and any recommendations for legislation relating to the broadcasting of professional football, baseball, basketball, and hock- ey games which the Commission determines would serve the public interest.

very high frequency commercial television broadcasting in a man- ner which ensures that not less than one such channel shall be al- located to each State, if technically feasible. In any case in which licensee of a very high frequency commercial television broadcast station notifies the Commission to the effect that such licensee will agree to the reallocation of its channel to a community within a State in which there is allocated no very high frequency commer- cial television broadcast channel at the time such notification, the Commission shall, not withstanding any other provision of law, order such reallocation and issue a license to such licensee for that purpose pursuant to such notification for a term of not to exceed 5 years as provided in section 307(d) of the Communications Act of 1934.

(b) AM RADIO STATIONS.—It shall be the policy of the Commis- sion, in any case in which the licensee of an existing AM daytime- only station located in a community with a population of more than 100,000 persons that lacks a local full-time aural station licensed to that community and that is located within a Class I station pri- mary service area notifies the Commission that such licensee seeks to provide full-time service, to ensure that such a licensee is able to place a principal community contour signal over its entire com- munity of license 24 hours a day, if technically feasible. The Com- mission shall report to the appropriate committees of Congress within 30 days after the date of enactment of this Act on how it intends to meet this policy goal. SEC. 332. ø47 U.S.C. 332¿ MOBILE SERVICES.

(a) In taking actions to manage the spectrum to be made avail- able for use by the private mobile services, the Commission shall consider, consistent with section 1 of this Act, whether such actions will—

(1) promote the safety of life and property; (2) improve the efficiency of spectrum use and reduce the

regulatory burden upon spectrum users, based upon sound en- gineering principles, user operational requirements, and mar- ketplace demands;

(3) encourage competition and provide services to the larg- est feasible number of users; or

(4) increase interservice sharing opportunities between pri- vate mobile services and other services. (b)(1) The Commission, in coordinating the assignment of fre-

quencies to stations in the private mobile services and in the fixed services (as defined by the Commission by rule), shall have author- ity to utilize assistance furnished by advisory coordinating commit-

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205 Sec. 332COMMUNICATIONS ACT OF 1934

1 Section 6002 of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103–66; Aug. 10, 1993; 107 Stat. 312), subsection (b)(2) of which extensively revised section 332(c) and (d) of the Com- munications Act of 1934, contained the following effective date and deadlines provisions:

SEC. 6002. AUTHORITY TO USE COMPETITIVE BIDDING. (a) * * *

* * * * * * * (c) ø47 U.S.C. 332 note¿ EFFECTIVE DATES.—

(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this sec- tion are effective on the date of enactment of this Act.

(2) EFFECTIVE DATES OF MOBILE SERVICE AMENDMENTS.—The amendments made by sub- section (b)(2) shall be effective on the date of enactment of this Act, except that—

(A) section 332(c)(3)(A) of the Communications Act of 1934, as amended by such sub- section, shall take effect 1 year after such date of enactment; and

(B) any private land mobile service provided by any person before such date of enact- ment, and any paging service utilizing frequencies allocated as of January 1, 1993, for private land mobile services, shall, except for purposes of section 332(c)(6) of such Act, be treated as a private mobile service until 3 years after such date of enactment.

(d) DEADLINES FOR COMMISSION ACTION.— (1) ø47 U.S.C. 309 note¿ GENERAL RULEMAKING.—The Federal Communications Commis-

sion shall prescribe regulations to implement section 309(j) of the Communications Act of 1934 (as added by this section) within 210 days after the date of enactment of this Act.

(2) ø47 U.S.C. 309 note¿ PCS ORDERS AND LICENSING.—The Commission shall— (A) within 180 days after such date of enactment, issue a final report and order (i)

in the matter entitled ‘‘Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies’’ (ET Docket No. 92–9); and (ii) in the matter entitled ‘‘Amendment of the Commission’s Rules to Establish New Personal Commu- nications Services’’ (GEN Docket No. 90–314; ET Docket No. 92–100); and

(B) within 270 days after such date of enactment, commence issuing licenses and per- mits in the personal communications service.

(3) ø47 U.S.C. 332 note¿ TRANSITIONAL RULEMAKING FOR MOBILE SERVICE PROVIDERS.— Within 1 year after the date of enactment of this Act, the Federal Communications Commis- sion—

(A) shall issue such modifications or terminations of the regulations applicable (before the date of enactment of this Act) to private land mobile services as are necessary to implement the amendments made by subsection (b)(2);

(B) in the regulations that will, after such date of enactment, apply to a service that was a private land mobile service and that becomes a commercial mobile service (as a consequence of such amendments), shall make such other modifications or termi- nations as may be necessary and practical to assure that licensees in such service are subjected to technical requirements that are comparable to the technical requirements that apply to licensees that are providers of substantially similar common carrier serv- ices;

(D) shall include, in such regulations, modifications, and terminations, such provi- sions as are necessary to provide for an orderly transition.

tees consisting of individuals who are not officers or employees of the Federal Government.

(2) The authority of the Commission established in this sub- section shall not be subject to or affected by the provisions of part III of title 5, United States Code, or section 3679(b) of the Revised Statutes (31 U.S.C. 665(b)).

(3) Any person who provides assistance to the Commission under this subsection shall not be considered, by reason of having provided such assistance, a Federal employee.

(4) Any advisory coordinating committee which furnishes as- sistance to the Commission under this subsection shall not be sub- ject to the provisions of the Federal Advisory Committee Act.

SERVICES.—(A) A person engaged in the provision of a service that is a commercial mobile service shall, insofar as such per- son is so engaged, be treated as a common carrier for purposes of this Act, except for such provisions of title II as the Commis- sion may specify by regulation as inapplicable to that service

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206Sec. 332 COMMUNICATIONS ACT OF 1934

or person. In prescribing or amending any such regulation, the Commission may not specify any provision of section 201, 202, or 208, and may specify any other provision only if the Com- mission determines that—

(i) enforcement of such provision is not necessary in order to ensure that the charges, practices, classifications, or regulations for or in connection with that service are just and reasonable and are not unjustly or unreasonably discriminatory;

(ii) enforcement of such provision is not necessary for the protection of consumers; and

(iii) specifying such provision is consistent with the public interest. (B) Upon reasonable request of any person providing com-

mercial mobile service, the Commission shall order a common carrier to establish physical connections with such service pur- suant to the provisions of section 201 of this Act. Except to the extent that the Commission is required to respond to such a request, this subparagraph shall not be construed as a limita- tion or expansion of the Commission’s authority to order inter- connection pursuant to this Act.

(C) The Commission shall review competitive market con- ditions with respect to commercial mobile services and shall in- clude in its annual report an analysis of those conditions. Such analysis shall include an identification of the number of com- petitors in various commercial mobile services, an analysis of whether or not there is effective competition, an analysis of whether any of such competitors have a dominant share of the market for such services, and a statement of whether addi- tional providers or classes of providers in those services would be likely to enhance competition. As a part of making a deter- mination with respect to the public interest under subpara- graph (A)(iii), the Commission shall consider whether the pro- posed regulation (or amendment thereof) will promote competi- tive market conditions, including the extent to which such reg- ulation (or amendment) will enhance competition among pro- viders of commercial mobile services. If the Commission deter- mines that such regulation (or amendment) will promote com- petition among providers of commercial mobile services, such determination may be the basis for a Commission finding that such regulation (or amendment) is in the public interest.

(D) The Commission shall, not later than 180 days after the date of enactment of this subparagraph, complete a rule- making required to implement this paragraph with respect to the licensing of personal communications services, including making any determinations required by subparagraph (C).

(2) NON-COMMON CARRIER TREATMENT OF PRIVATE MOBILE SERVICES.—A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act. A common carrier (other than a person that was treated as a provider of a private land mobile service prior to the enactment of the Omnibus Budget Reconciliation Act of 1993) shall not provide any dispatch service on any frequency

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207 Sec. 332COMMUNICATIONS ACT OF 1934

allocated for common carrier service, except to the extent such dispatch service is provided on stations licensed in the domes- tic public land mobile radio service before January 1, 1982. The Commission may by regulation terminate, in whole or in part, the prohibition contained in the preceding sentence if the Com- mission determines that such termination will serve the public interest.

(3) STATE PREEMPTION.—(A) Notwithstanding sections 2(b) and 221(b), no State or local government shall have any au- thority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services. Nothing in this subparagraph shall exempt providers of com- mercial mobile services (where such services are a substitute for land line telephone exchange service for a substantial por- tion of the communications within such State) from require- ments imposed by a State commission on all providers of tele- communications services necessary to ensure the universal availability of telecommunications service at affordable rates. Notwithstanding the first sentence of this subparagraph, a State may petition the Commission for authority to regulate the rates for any commercial mobile service and the Commis- sion shall grant such petition if such State demonstrates that—

(i) market conditions with respect to such services fail to protect subscribers adequately from unjust and unrea- sonable rates or rates that are unjustly or unreasonably discriminatory; or

(ii) such market conditions exist and such service is a replacement for land line telephone exchange service for a substantial portion of the telephone land line exchange service within such State.

The Commission shall provide reasonable opportunity for pub- lic comment in response to such petition, and shall, within 9 months after the date of its submission, grant or deny such pe- tition. If the Commission grants such petition, the Commission shall authorize the State to exercise under State law such au- thority over rates, for such periods of time, as the Commission deems necessary to ensure that such rates are just and reason- able and not unjustly or unreasonably discriminatory.

(B) If a State has in effect on June 1, 1993, any regulation concerning the rates for any commercial mobile service offered in such State on such date, such State may, no later than 1 year after the date of enactment of the Omnibus Budget Rec- onciliation Act of 1993, petition the Commission requesting that the State be authorized to continue exercising authority over such rates. If a State files such a petition, the State’s ex- isting regulation shall, notwithstanding subparagraph (A), re- main in effect until the Commission completes all action (in- cluding any reconsideration) on such petition. The Commission shall review such petition in accordance with the procedures established in such subparagraph, shall complete all action (in- cluding any reconsideration) within 12 months after such peti-

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208Sec. 332 COMMUNICATIONS ACT OF 1934

tion is filed, and shall grant such petition if the State satisfies the showing required under subparagraph (A)(i) or (A)(ii). If the Commission grants such petition, the Commission shall au- thorize the State to exercise under State law such authority over rates, for such period of time, as the Commission deems necessary to ensure that such rates are just and reasonable and not unjustly or unreasonably discriminatory. After a rea- sonable period of time, as determined by the Commission, has elapsed from the issuance of an order under subparagraph (A) or this subparagraph, any interested party may petition the Commission for an order that the exercise of authority by a State pursuant to such subparagraph is no longer necessary to ensure that the rates for commercial mobile services are just and reasonable and not unjustly or unreasonably discrimina- tory. The Commission shall provide reasonable opportunity for public comment in response to such petition, and shall, within 9 months after the date of its submission, grant or deny such petition in whole or in part.

(4) REGULATORY TREATMENT OF COMMUNICATIONS SAT- ELLITE CORPORATION.—Nothing in this subsection shall be con- strued to alter or affect the regulatory treatment required by title IV of the Communications Satellite Act of 1962 of the cor- poration authorized by title III of such Act.

(5) SPACE SEGMENT CAPACITY.—Nothing in this section shall prohibit the Commission from continuing to determine whether the provision of space segment capacity by satellite systems to providers of commercial mobile services shall be treated as common carriage.

(6) FOREIGN OWNERSHIP.—The Commission, upon a peti- tion for waiver filed within 6 months after the date of enact- ment of the Omnibus Budget Reconciliation Act of 1993, may waive the application of section 310(b) to any foreign owner- ship that lawfully existed before May 24, 1993, of any provider of a private land mobile service that will be treated as a com- mon carrier as a result of the enactment of the Omnibus Budg- et Reconciliation Act of 1993, but only upon the following con- ditions:

(A) The extent of foreign ownership interest shall not be increased above the extent which existed on May 24, 1993.

(B) Such waiver shall not permit the subsequent transfer of ownership to any other person in violation of section 310(b). (7) PRESERVATION OF LOCAL ZONING AUTHORITY.—

(A) GENERAL AUTHORITY.—Except as provided in this paragraph, nothing in this Act shall limit or affect the au- thority of a State or local government or instrumentality thereof over decisions regarding the placement, construc- tion, and modification of personal wireless service facili- ties.

(B) LIMITATIONS.— (i) The regulation of the placement, construction,

and modification of personal wireless service facilities

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209 Sec. 332COMMUNICATIONS ACT OF 1934

by any State or local government or instrumentality thereof—

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of pro- hibiting the provision of personal wireless serv- ices. (ii) A State or local government or instrumentality

thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instru- mentality, taking into account the nature and scope of such request.

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evi- dence contained in a written record.

(iv) No State or local government or instrumen- tality thereof may regulate the placement, construc- tion, and modification of personal wireless service fa- cilities on the basis of the environmental effects of radio frequency emissions to the extent that such fa- cilities comply with the Commission’s regulations con- cerning such emissions.

(v) Any person adversely affected by any final ac- tion or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such ac- tion or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and de- cide such action on an expedited basis. Any person ad- versely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C) DEFINITIONS.—For purposes of this paragraph—

(i) the term ‘‘personal wireless services’’ means commercial mobile services, unlicensed wireless serv- ices, and common carrier wireless exchange access services;

(ii) the term ‘‘personal wireless service facilities’’ means facilities for the provision of personal wireless services; and

(iii) the term ‘‘unlicensed wireless service’’ means the offering of telecommunications services using duly authorized devices which do not require individual li- censes, but does not mean the provision of direct-to- home satellite services (as defined in section 303(v)).

(8) MOBILE SERVICES ACCESS.—A person engaged in the provision of commercial mobile services, insofar as such person is so engaged, shall not be required to provide equal access to common carriers for the provision of telephone toll services. If

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210Sec. 333 COMMUNICATIONS ACT OF 1934

the Commission determines that subscribers to such services are denied access to the provider of telephone toll services of the subscribers’ choice, and that such denial is contrary to the public interest, convenience, and necessity, then the Commis- sion shall prescribe regulations to afford subscribers unblocked access to the provider of telephone toll services of the sub- scribers’ choice through the use of a carrier identification code assigned to such provider or other mechanism. The require- ments for unblocking shall not apply to mobile satellite serv- ices unless the Commission finds it to be in the public interest to apply such requirements to such services. (d) DEFINITIONS.—For purposes of this section—

(1) the term ‘‘commercial mobile service’’ means any mobile service (as defined in section 3) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission;

(2) the term ‘‘interconnected service’’ means service that is interconnected with the public switched network (as such terms are defined by regulation by the Commission) or service for which a request for interconnection is pending pursuant to subsection (c)(1)(B); and

(3) the term ‘‘private mobile service’’ means any mobile service (as defined in section 3) that is not a commercial mobile service or the functional equivalent of a commercial mobile service, as specified by regulation by the Commission.

SEC. 333. ø47 U.S.C. 333¿ WILLFUL OR MALICIOUS INTERFERENCE. No person shall willfully or maliciously interfere with or cause

interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government. SEC. 334. ø47 U.S.C. 334¿ LIMITATION ON REVISION OF EQUAL EMPLOY-

MENT OPPORTUNITY REGULATIONS. (a) LIMITATION.—Except as specifically provided in this section,

the Commission shall not revise— (1) the regulations concerning equal employment oppor-

tunity as in effect on September 1, 1992 (47 C.F.R. 73.2080) as such regulations apply to television broadcast station licensees and permittees; or

(2) the forms used by such licensees and permittees to re- port pertinent employment data to the Commission. (b) MIDTERM REVIEW.—The Commission shall revise the regu-

lations described in subsection (a) to require a midterm review of television broadcast station licensees’ employment practices and to require the Commission to inform such licensees of necessary im- provements in recruitment practices identified as a consequence of such review.

(c) AUTHORITY TO MAKE TECHNICAL REVISIONS.—The Commis- sion may revise the regulations described in subsection (a) to make nonsubstantive technical or clerical revisions in such regulations as necessary to reflect changes in technology, terminology, or Commis- sion organization.

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SEC. 335. ø47 U.S.C. 335¿ DIRECT BROADCAST SATELLITE SERVICE OB- LIGATIONS.

(a) PROCEEDING REQUIRED TO REVIEW DBS RESPONSIBIL- ITIES.—The Commission shall, within 180 days after the date of en- actment of this section, initiate a rulemaking proceeding to impose, on providers of direct broadcast satellite service, public interest or other requirements for providing video programming. Any regula- tions prescribed pursuant to such rulemaking shall, at a minimum, apply the access to broadcast time requirement of section 312(a)(7) and the use of facilities requirements of section 315 to providers of direct broadcast satellite service providing video programming. Such proceeding also shall examine the opportunities that the es- tablishment of direct broadcast satellite service provides for the principle of localism under this Act, and the methods by which such principle may be served through technological and other de- velopments in, or regulation of, such service.

(b) CARRIAGE OBLIGATIONS FOR NONCOMMERCIAL, EDU- CATIONAL, STATE PUBLIC AFFAIRS, AND INFORMATIONAL PROGRAM- MING.—

(1) CHANNEL CAPACITY REQUIRED.— (A) IN GENERAL.—Except as provided in subparagraph

(B), the Commission shall require, as a condition of any provision, initial authorization, or authorization renewal for a provider of direct broadcast satellite service providing video programming, that the provider of such service re- serve a portion of its channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informa- tional nature.

(B) REQUIREMENT FOR QUALIFIED SATELLITE PRO- VIDER.—The Commission shall require, as a condition of any provision, initial authorization, or authorization re- newal for a qualified satellite provider of direct broadcast satellite service providing video programming, that such provider reserve a portion of its channel capacity, equal to not less than 3.5 percent nor more than 7 percent, exclu- sively for noncommercial programming of an educational or informational nature. (2) USE OF UNUSED CHANNEL CAPACITY.—A provider of

such service may utilize for any purpose any unused channel capacity required to be reserved under this subsection pending the actual use of such channel capacity for noncommercial pro- gramming of an educational or informational nature.

(3) PRICES, TERMS, AND CONDITIONS; EDITORIAL CONTROL.— A provider of direct broadcast satellite service shall meet the requirements of this subsection by making channel capacity available to national educational programming suppliers, upon reasonable prices, terms, and conditions, as determined by the Commission under paragraph (4). The provider of direct broad- cast satellite service shall not exercise any editorial control over any video programming provided pursuant to this sub- section.

(4) LIMITATIONS.—In determining reasonable prices under paragraph (3)—

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(A) the Commission shall take into account the non- profit character of the programming provider and any Fed- eral funds used to support such programming;

(B) the Commission shall not permit such prices to ex- ceed, for any channel made available under this sub- section, 50 percent of the total direct costs of making such channel available; and

(i) marketing costs, general administrative costs, and similar overhead costs of the provider of direct broadcast satellite service; and

(ii) the revenue that such provider might have ob- tained by making such channel available to a commer- cial provider of video programming.

(5) DEFINITIONS.—For purposes of this subsection— (A) The term ‘‘provider of direct broadcast satellite

service’’ means— (i) a licensee for a Ku-band satellite system under

part 100 of title 47 of the Code of Federal Regulations; or

(ii) any distributor who controls a minimum num- ber of channels (as specified by Commission regula- tion) using a Ku-band fixed service satellite system for the provision of video programming directly to the home and licensed under part 25 of title 47 of the Code of Federal Regulations. (B) The term ‘‘national educational programming sup-

plier’’ includes any qualified noncommercial educational television station, other public telecommunications enti- ties, and public or private educational institutions.

(i) provides the retransmission of the State public affairs networks of at least 15 different States;

(ii) offers the programming of State public affairs networks upon reasonable prices, terms, and condi- tions as determined by the Commission under para- graph (4); and

(iii) does not delete any noncommercial program- ming of an educational or informational nature in con- nection with the carriage of a State public affairs net- work. (D) The term ‘‘State public affairs network’’ means a

non-commercial non-broadcast network or a noncommer- cial educational television station—

(i) whose programming consists of information about State government deliberations and public pol- icy events; and

(ii) that is operated by— (I) a State government or subdivision thereof; (II) an organization described in section

501(c)(3) of the Internal Revenue Code of 1986 that is exempt from taxation under section 501(a)

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1 Section 531 of the Public Health, Security, and Bioterrorism Response Act of 2001 (PL 107- 188) provided for additional advanced television channel assignments as follows:

SEC. 531. ø47 U.S.C. 336 note¿ TRANSITION TO DIGITAL TELEVISION. (a) PAIR ASSIGNMENT REQUIRED.—In order to further promote the orderly transition to digital

television, and to promote the equitable allocation and use of digital channels by television broadcast permittees and licensees, the Federal Communications Commission, at the request of an eligible licensee or permittee, shall, within 90 days after the date of enactment of this Act, allot, if necessary, and assign a paired digital television channel to that licensee or permittee, provided that—

(1) such channel can be allotted and assigned without further modification of the tables of allotments as set forth in sections 73.606 and 73.622 of the Commission’s regulations (47 CFR 73.606, 73.622); and

(2) such allotment and assignment is otherwise consistent with the Commission’s rules (47 CFR part 73).

(b) ELIGIBLE TRANSITION LICENSEE OR PERMITTEE.—For purposes of subsection (a), the term ‘‘eligible licensee or permittee’’ means only a full power television broadcast licensee or per- mittee (or its successor in interest) that—

(1) had an application pending for an analog television station construction permit as of October 24, 1991, which application was granted after April 3, 1997; and

(2) as of the date of enactment of this Act, is the permittee or licensee of that station. (c) REQUIREMENTS ON LICENSEE OR PERMITTEE.—

(1) CONSTRUCTION DEADLINE.—Any licensee or permittee receiving a paired digital chan- nel pursuant to this section—

(A) shall be required to construct the digital television broadcast facility within 18 months of the date on which the Federal Communications Commission issues a con- struction permit therefore, and

(B) shall be prohibited from obtaining or receiving an extension of time from the Com- mission beyond the construction deadline established by paragraph (1).

(2) PROHIBITION OF ANALOG OPERATION USING DIGITAL PAIR.—Any licensee or permittee re- ceiving a paired digital channel pursuant to this section shall be prohibited from giving up its current paired analog assignment and becoming a single-channel broadcaster and oper- ating in analog on such paired digital channel.

(d) RELIEF RESTRICTED.—Any paired digital allotment and assignment made under this sec- tion shall not be available to any other applicant unless such applicant is an eligible licensee or permittee within the meaning of subsection (b).

of such Code and that is governed by an inde- pendent board of directors; or

(III) a cable system. SEC. 336. ø47 U.S.C. 336¿ BROADCAST SPECTRUM FLEXIBILITY. 1

(a) COMMISSION ACTION.—If the Commission determines to issue additional licenses for advanced television services, the Com- mission—

(1) should limit the initial eligibility for such licenses to persons that, as of the date of such issuance, are licensed to operate a television broadcast station or hold a permit to con- struct such a station (or both); and

(2) shall adopt regulations that allow the holders of such licenses to offer such ancillary or supplementary services on designated frequencies as may be consistent with the public in- terest, convenience, and necessity. (b) CONTENTS OF REGULATIONS.—In prescribing the regulations

required by subsection (a), the Commission shall— (1) only permit such licensee or permittee to offer ancillary

or supplementary services if the use of a designated frequency for such services is consistent with the technology or method designated by the Commission for the provision of advanced television services;

(2) limit the broadcasting of ancillary or supplementary services on designated frequencies so as to avoid derogation of any advanced television services, including high definition tele- vision broadcasts, that the Commission may require using such frequencies;

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(3) apply to any other ancillary or supplementary service such of the Commission’s regulations as are applicable to the offering of analogous services by any other person, except that no ancillary or supplementary service shall have any rights to carriage under section 614 or 615 or be deemed a multichannel video programming distributor for purposes of section 628;

(4) adopt such technical and other requirements as may be necessary or appropriate to assure the quality of the signal used to provide advanced television services, and may adopt regulations that stipulate the minimum number of hours per day that such signal must be transmitted; and

(5) prescribe such other regulations as may be necessary for the protection of the public interest, convenience, and ne- cessity. (c) RECOVERY OF LICENSE.—If the Commission grants a license

for advanced television services to a person that, as of the date of such issuance, is licensed to operate a television broadcast station or holds a permit to construct such a station (or both), the Commis- sion shall, as a condition of such license, require that either the ad- ditional license or the original license held by the licensee be sur- rendered to the Commission for reallocation or reassignment (or both) pursuant to Commission regulation.

(d) PUBLIC INTEREST REQUIREMENT.—Nothing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience, and ne- cessity. In the Commission’s review of any application for renewal of a broadcast license for a television station that provides ancillary or supplementary services, the television licensee shall establish that all of its program services on the existing or advanced tele- vision spectrum are in the public interest. Any violation of the Commission rules applicable to ancillary or supplementary services shall reflect upon the licensee’s qualifications for renewal of its li- cense.

(e) FEES.— (1) SERVICES TO WHICH FEES APPLY.—If the regulations

prescribed pursuant to subsection (a) permit a licensee to offer ancillary or supplementary services on a designated fre- quency—

(A) for which the payment of a subscription fee is re- quired in order to receive such services, or

(B) for which the licensee directly or indirectly re- ceives compensation from a third party in return for trans- mitting material furnished by such third party (other than commercial advertisements used to support broadcasting for which a subscription fee is not required),

the Commission shall establish a program to assess and collect from the licensee for such designated frequency an annual fee or other schedule or method of payment that promotes the ob- jectives described in subparagraphs (A) and (B) of paragraph (2).

(2) COLLECTION OF FEES.—The program required by para- graph (1) shall—

(A) be designed (i) to recover for the public a portion of the value of the public spectrum resource made avail-

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able for such commercial use, and (ii) to avoid unjust en- richment through the method employed to permit such uses of that resource;

(B) recover for the public an amount that, to the ex- tent feasible, equals but does not exceed (over the term of the license) the amount that would have been recovered had such services been licensed pursuant to the provisions of section 309(j) of this Act and the Commission’s regula- tions thereunder; and

(C) be adjusted by the Commission from time to time in order to continue to comply with the requirements of this paragraph. (3) TREATMENT OF REVENUES.—

(A) GENERAL RULE.—Except as provided in subpara- graph (B), all proceeds obtained pursuant to the regula- tions required by this subsection shall be deposited in the Treasury in accordance with chapter 33 of title 31, United States Code.

(B) RETENTION OF REVENUES.—Notwithstanding sub- paragraph (A), the salaries and expenses account of the Commission shall retain as an offsetting collection such sums as may be necessary from such proceeds for the costs of developing and implementing the program required by this section and regulating and supervising advanced tele- vision services. Such offsetting collections shall be avail- able for obligation subject to the terms and conditions of the receiving appropriations account, and shall be depos- ited in such accounts on a quarterly basis. (4) REPORT.—Within 5 years after the date of enactment of

the Telecommunications Act of 1996, the Commission shall re- port to the Congress on the implementation of the program re- quired by this subsection, and shall annually thereafter advise the Congress on the amounts collected pursuant to such pro- gram. (f) PRESERVATION OF LOW-POWER COMMUNITY TELEVISION

BROADCASTING.— (1) CREATION OF CLASS A LICENSES.—

(A) RULEMAKING REQUIRED.—Within 120 days after the date of the enactment of the Community Broadcasters Protection Act of 1999, the Commission shall prescribe reg- ulations to establish a class A television license to be avail- able to licensees of qualifying low-power television sta- tions. Such regulations shall provide that—

(i) the license shall be subject to the same license terms and renewal standards as the licenses for full- power television stations except as provided in this subsection; and

(ii) each such class A licensee shall be accorded primary status as a television broadcaster as long as the station continues to meet the requirements for a qualifying low-power station in paragraph (2). (B) NOTICE TO AND CERTIFICATION BY LICENSEES.—

Within 30 days after the date of the enactment of the Community Broadcasters Protection Act of 1999, the Com-

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mission shall send a notice to the licensees of all low- power televisions licenses that describes the requirements for class A designation. Within 60 days after such date of enactment, licensees intending to seek class A designation shall submit to the Commission a certification of eligibility based on the qualification requirements of this subsection. Absent a material deficiency, the Commission shall grant certification of eligibility to apply for class A status.

(C) APPLICATION FOR AND AWARD OF LICENSES.—Con- sistent with the requirements set forth in paragraph (2)(A) of this subsection, a licensee may submit an application for class A designation under this paragraph within 30 days after final regulations are adopted under subparagraph (A) of this paragraph. Except as provided in paragraphs (6) and (7), the Commission shall, within 30 days after receipt of an application of a licensee of a qualifying low-power television station that is acceptable for filing, award such a class A television station license to such licensee.

(D) RESOLUTION OF TECHNICAL PROBLEMS.—The Com- mission shall act to preserve the service areas of low-power television licensees pending the final resolution of a class A application. If, after granting certification of eligibility for a class A license, technical problems arise requiring an engineering solution to a full-power station’s allotted pa- rameters or channel assignment in the digital television Table of Allotments, the Commission shall make such modifications as necessary—

(i) to ensure replication of the full-power digital television applicant’s service area, as provided for in sections 73.622 and 73.623 of the Commission’s regu- lations (47 CFR 73.622, 73.623); and

(ii) to permit maximization of a full-power digital television applicant’s service area consistent with such sections 73.622 and 73.623,

if such applicant has filed an application for maximization or a notice of its intent to seek such maximization by De- cember 31, 1999, and filed a bona fide application for maximization by May 1, 2000. Any such applicant shall comply with all applicable Commission rules regarding the construction of digital television facilities.

(E) CHANGE APPLICATIONS.—If a station that is award- ed a construction permit to maximize or significantly en- hance its digital television service area, later files a change application to reduce its digital television service area, the protected contour of that station shall be reduced in ac- cordance with such change modification. (2) QUALIFYING LOW-POWER TELEVISION STATIONS.—For

purposes of this subsection, a station is a qualifying low-power television station if—

(A)(i) during the 90 days preceding the date of the en- actment of the Community Broadcasters Protection Act of 1999—

(I) such station broadcast a minimum of 18 hours per day;

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(II) such station broadcast an average of at least 3 hours per week of programming that was produced within the market area served by such station, or the market area served by a group of commonly controlled low-power stations that carry common local program- ming produced within the market area served by such group; and

(III) such station was in compliance with the Com- mission’s requirements applicable to low-power tele- vision stations; and (ii) from and after the date of its application for a class

A license, the station is in compliance with the Commis- sion’s operating rules for full-power television stations; or

(B) the Commission determines that the public inter- est, convenience, and necessity would be served by treating the station as a qualifying low-power television station for purposes of this section, or for other reasons determined by the Commission. (3) COMMON OWNERSHIP.—No low-power television station

authorized as of the date of the enactment of the Community Broadcasters Protection Act of 1999 shall be disqualified for a class A license based on common ownership with any other me- dium of mass communication.

(4) ISSUANCE OF LICENSES FOR ADVANCED TELEVISION SERV- ICES TO TELEVISION TRANSLATOR STATIONS AND QUALIFYING LOW-POWER TELEVISION STATIONS.—The Commission is not re- quired to issue any additional license for advanced television services to the licensee of a class A television station under this subsection, or to any licensee of any television translator station, but shall accept a license application for such services proposing facilities that will not cause interference to the serv- ice area of any other broadcast facility applied for, protected, permitted, or authorized on the date of filing of the advanced television application. Such new license or the original license of the applicant shall be forfeited after the end of the digital television service transition period, as determined by the Com- mission. A licensee of a low-power television station or tele- vision translator station may, at the option of licensee, elect to convert to the provision of advanced television services on its analog channel, but shall not be required to convert to digital operation until the end of such transition period.

(5) NO PREEMPTION OF SECTION 337.—Nothing in this sub- section preempts or otherwise affects section 337 of this Act.

(6) INTERIM QUALIFICATION.— (A) STATIONS OPERATING WITHIN CERTAIN BAND-

WIDTH.—The Commission may not grant a class A license to a low-power television station for operation between 698 and 806 megahertz, but the Commission shall provide to low-power television stations assigned to and temporarily operating in that bandwidth the opportunity to meet the qualification requirements for a class A license. If such a qualified applicant for a class A license is assigned a chan- nel within the core spectrum (as such term is defined in MM Docket No. 87–286, February 17, 1998), the Commis-

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218Sec. 336 COMMUNICATIONS ACT OF 1934

sion shall issue a class A license simultaneously with the assignment of such channel.

(B) CERTAIN CHANNELS OFF-LIMITS.—The Commission may not grant under this subsection a class A license to a low-power television station operating on a channel with- in the core spectrum that includes any of the 175 addi- tional channels referenced in paragraph 45 of its February 23, 1998, Memorandum Opinion and Order on Reconsider- ation of the Sixth Report and Order (MM Docket No. 87– 268). Within 18 months after the date of the enactment of the Community Broadcasters Protection Act of 1999, the Commission shall identify by channel, location, and appli- cable technical parameters those 175 channels. (7) NO INTERFERENCE REQUIREMENT.—The Commission

may not grant a class A license, nor approve a modification of a class A license, unless the applicant or licensee shows that the class A station for which the license or modification is sought will not cause—

(A) interference within— (i) the predicted Grade B contour (as of the date

of the enactment of the Community Broadcasters Pro- tection Act of 1999, or November 1, 1999, whichever is later, or as proposed in a change application filed on or before such date) of any television station transmit- ting in analog format; or

(ii)(I) the digital television service areas provided in the DTV Table of Allotments; (II) the areas pro- tected in the Commission’s digital television regula- tions (47 CFR 73.622(e) and (f )); (III) the digital tele- vision service areas of stations subsequently granted by the Commission prior to the filing of a class A ap- plication; and (IV) stations seeking to maximize power under the Commission’s rules, if such station has com- plied with the notification requirements in paragraph (1)(D); (B) interference within the protected contour of any

low-power television station or low-power television trans- lator station that—

(i) was licensed prior to the date on which the ap- plication for a class A license, or for the modification of such a license, was filed;

(ii) was authorized by construction permit prior to such date; or

(iii) had a pending application that was submitted prior to such date; or (C) interference within the protected contour of 80

miles from the geographic center of the areas listed in sec- tion 22.625(b)(1) or 90.303 of the Commission’s regulations (47 CFR 22.625(b)(1) and 90.303) for frequencies in—

(i) the 470–512 megahertz band identified in section 22.621 or 90.303 of such regulations; or

(ii) the 482–488 megahertz band in New York. (8) PRIORITY FOR DISPLACED LOW-POWER STATIONS.—Low-

power stations that are displaced by an application filed under

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1 Section 143 of the Miscellaneous Appropriations Act, 2001 (P.L. 106–554; Appendix D), added subsection (h) to section 336. Section 143(b) of the Miscellaneous Appropriations Act, 2001, provided as follows:

(b) ø47 U.S.C. 336 note¿ The Federal Communications Commission shall submit a report to the Congress on June 30, 2001, and June 30, 2002, evaluating the utility of using low-power television stations to provide high-speed digital data service. The reports shall be based on the pilot projects authorized by section 336(h) of the Communications Act of 1934 (47 U.S.C. 336(h)).

this section shall have priority over other low-power stations in the assignment of available channels. (g) EVALUATION.—Within 10 years after the date the Commis-

sion first issues additional licenses for advanced television services, the Commission shall conduct an evaluation of the advanced tele- vision services program. Such evaluation shall include—

(1) an assessment of the willingness of consumers to pur- chase the television receivers necessary to receive broadcasts of advanced television services;

(2) an assessment of alternative uses, including public safety use, of the frequencies used for such broadcasts; and

(3) the extent to which the Commission has been or will be able to reduce the amount of spectrum assigned to licensees. (h) 1(1) Within 60 days after receiving a request (made in such

form and manner and containing such information as the Commis- sion may require) under this subsection from a low-power television station to which this subsection applies, the Commission shall au- thorize the licensee or permittee of that station to provide digital data service subject to the requirements of this subsection as a pilot project to demonstrate the feasibility of using low-power tele- vision stations to provide high-speed wireless digital data service, including Internet access to unserved areas.

(2) The low-power television stations to which this sub- section applies are as follows:

(A) KHLM–LP, Houston, Texas. (B) WTAM–LP, Tampa, Florida. (C) WWRJ–LP, Jacksonville, Florida. (D) WVBG–LP, Albany, New York. (E) KHHI–LP, Honolulu, Hawaii. (F) KPHE–LP (K19DD), Phoenix, Arizona. (G) K34FI, Bozeman, Montana. (H) K65GZ, Bozeman, Montana. (I) WXOB–LP, Richmond, Virginia. (J) WIIW–LP, Nashville, Tennessee. (K) A station and repeaters to be determined by the

Federal Communications Commission for the sole purpose of providing service to communities in the Kenai Peninsula Borough and Matanuska Susitna Borough.

(L) WSPY–LP, Plano, Illinois. (M) W24AJ, Aurora, Illinois.

(3) Notwithstanding any requirement of section 553 of title 5, United States Code, the Commission shall promulgate regu- lations establishing the procedures, consistent with the re- quirements of paragraphs (4) and (5), governing the pilot projects for the provision of digital data services by certain low power television licensees within 120 days after the date of en- actment of LPTV Digital Data Services Act. The regulations shall set forth—

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(A) requirements as to the form, manner, and informa- tion required for submitting requests to the Commission to provide digital data service as a pilot project;

(B) procedures for testing interference to digital tele- vision receivers caused by any pilot project station or re- mote transmitter;

(C) procedures for terminating any pilot project station or remote transmitter or both that causes interference to any analog or digital full-power television stations, class A television station, television translators or any other users of the core television band;

(D) specifications for reports to be filed quarterly by each low power television licensee participating in a pilot project;

(E) procedures by which a low power television li- censee participating in a pilot project shall notify television broadcast stations in the same market upon commence- ment of digital data services and for ongoing coordination with local broadcasters during the test period; and

(F) procedures for the receipt and review of inter- ference complaints on an expedited basis consistent with paragraph (5)(D). (4) A low-power television station to which this subsection

applies may not provide digital data service unless— (A) the provision of that service, including any remote

return-path transmission in the case of 2-way digital data service, does not cause any interference in violation of the Commission’s existing rules, regarding interference caused by low power television stations to full-service analog or digital television stations, class A television stations, or television translator stations; and

(B) the station complies with the Commission’s regula- tions governing safety, environmental, and sound engi- neering practices, and any other Commission regulation under paragraph (3) governing pilot program operations. (5)(A) The Commission may limit the provision of digital

data service by a low-power television station to which this subsection applies if the Commission finds that—

(i) the provision of 2-way digital data service by that station causes any interference that cannot otherwise be remedied; or

(ii) the provision of 1-way digital data service by that station causes any interference. (B) The Commission shall grant any such station, upon ap-

plication (made in such form and manner and containing such information as the Commission may require) by the licensee or permittee of that station, authority to move the station to an- other location, to modify its facilities to operate on a different channel, or to use booster or auxiliary transmitting locations, if the grant of authority will not cause interference to the al- lowable or protected service areas of full service digital tele- vision stations, National Television Standards Committee as- signments, or television translator stations, and provided, how- ever, no such authority shall be granted unless it is consistent

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with existing Commission regulations relating to the move- ment, modification, and use of non-class A low power television transmission facilities in order—

(i) to operate within television channels 2 through 51, inclusive; or

(ii) to demonstrate the utility of low-power television stations to provide high-speed 2-way wireless digital data service. (C) The Commission shall require quarterly reports from

each station authorized to provide digital data services under this subsection that include—

(i) information on the station’s experience with inter- ference complaints and the resolution thereof;

(ii) information on the station’s market success in pro- viding digital data service; and

(iii) such other information as the Commission may re- quire in order to administer this subsection. (D) The Commission shall resolve any complaints of inter-

ference with television reception caused by any station pro- viding digital data service authorized under this subsection within 60 days after the complaint is received by the Commis- sion.

(6) The Commission shall assess and collect from any low- power television station authorized to provide digital data serv- ice under this subsection an annual fee or other schedule or method of payment comparable to any fee imposed under the authority of this Act on providers of similar services. Amounts received by the Commission under this paragraph may be re- tained by the Commission as an offsetting collection to the ex- tent necessary to cover the costs of developing and imple- menting the pilot program authorized by this subsection, and regulating and supervising the provision of digital data service by low-power television stations under this subsection. Amounts received by the Commission under this paragraph in excess of any amount retained under the preceding sentence shall be deposited in the Treasury in accordance with chapter 33 of title 31, United States Code.

(7) In this subsection, the term ‘‘digital data service’’ in- cludes—

(A) digitally-based interactive broadcast service; and (B) wireless Internet access, without regard to—

(i) whether such access is— (I) provided on a one-way or a two-way basis; (II) portable or fixed; or (III) connected to the Internet via a band allo-

cated to Interactive Video and Data Service; and (ii) the technology employed in delivering such

service, including the delivery of such service via mul- tiple transmitters at multiple locations.

(8) Nothing in this subsection limits the authority of the Commission under any other provision of law. (i) DEFINITIONS.—As used in this section:

(1) ADVANCED TELEVISION SERVICES.—The term ‘‘advanced television services’’ means television services provided using

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222Sec. 337 COMMUNICATIONS ACT OF 1934

digital or other advanced technology as further defined in the opinion, report, and order of the Commission entitled ‘‘Ad- vanced Television Systems and Their Impact Upon the Exist- ing Television Broadcast Service’’, MM Docket 87–268, adopted September 17, 1992, and successor proceedings.

(2) DESIGNATED FREQUENCIES.—The term ‘‘designated fre- quency’’ means each of the frequencies designated by the Com- mission for licenses for advanced television services.

(3) HIGH DEFINITION TELEVISION.—The term ‘‘high defini- tion television’’ refers to systems that offer approximately twice the vertical and horizontal resolution of receivers generally available on the date of enactment of the Telecommunications Act of 1996, as further defined in the proceedings described in paragraph (1) of this subsection.

SEC. 337. ø47 U.S.C. 337¿ ALLOCATION AND ASSIGNMENT OF NEW PUB- LIC SAFETY SERVICES LICENSES AND COMMERCIAL LI- CENSES.

(a) IN GENERAL.—Not later than January 1, 1998, the Commis- sion shall allocate the electromagnetic spectrum between 746 megahertz and 806 megahertz, inclusive, as follows:

(1) 34 megahertz of that spectrum for public safety serv- ices according to the terms and conditions established by the Commission, in consultation with the Secretary of Commerce and the Attorney General; and

(2) 26 megahertz of that spectrum for commercial use to be assigned by competitive bidding pursuant to section 309(j). (b) ASSIGNMENT.—The Commission shall commence assign-

ment of licenses for public safety services created pursuant to sub- section (a) no later than September 30, 1998.

(1) USE OF UNUSED CHANNELS FOR PUBLIC SAFETY SERV- ICES.—Upon application by an entity seeking to provide public safety services, the Commission shall waive any requirement of this Act or its regulations implementing this Act (other than its regulations regarding harmful interference) to the extent necessary to permit the use of unassigned frequencies for the provision of public safety services by such entity. An applica- tion shall be granted under this subsection if the Commission finds that—

(A) no other spectrum allocated to public safety serv- ices is immediately available to satisfy the requested pub- lic safety service use;

(B) the requested use is technically feasible without causing harmful interference to other spectrum users enti- tled to protection from such interference under the Com- mission’s regulations;

(C) the use of the unassigned frequency for the provi- sion of public safety services is consistent with other allo- cations for the provision of such services in the geographic area for which the application is made;

(D) the unassigned frequency was allocated for its present use not less than 2 years prior to the date on which the application is granted; and

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(E) granting such application is consistent with the public interest. (2) APPLICABILITY.—Paragraph (1) shall apply to any appli-

cation to provide public safety services that is pending or filed on or after the date of enactment of the Balanced Budget Act of 1997. (d) CONDITIONS ON LICENSES.—In establishing service rules

with respect to licenses granted pursuant to this section, the Com- mission—

(1) shall establish interference limits at the boundaries of the spectrum block and service area;

(2) shall establish any additional technical restrictions nec- essary to protect full-service analog television service and dig- ital television service during a transition to digital television service;

(3) may permit public safety services licensees and com- mercial licensees—

(A) to aggregate multiple licenses to create larger spectrum blocks and service areas; and

(B) to disaggregate or partition licenses to create smaller spectrum blocks or service areas; and (4) shall establish rules insuring that public safety services

licensees using spectrum reallocated pursuant to subsection (a)(1) shall not be subject to harmful interference from tele- vision broadcast licensees. (e) REMOVAL AND RELOCATION OF INCUMBENT BROADCAST LI-

CENSEES.— (1) CHANNELS 52 TO 69.—Any full-power television station

licensee that holds a television broadcast license to operate be- tween 698 and 806 megahertz may not operate at that fre- quency after June 12, 2009.

(2) INCUMBENT QUALIFYING LOW-POWER STATIONS.—After making any allocation or assignment under this section, the Commission shall seek to assure, consistent with the Commis- sion’s plan for allotments for digital television service, that each qualifying low-power television station is assigned a fre- quency below 698 megahertz to permit the continued operation of such station. (f) DEFINITIONS.—For purposes of this section:

(1) PUBLIC SAFETY SERVICES.—The term ‘‘public safety services’’ means services—

(A) the sole or principal purpose of which is to protect the safety of life, health, or property;

(B) that are provided— (i) by State or local government entities; or (ii) by nongovernmental organizations that are au-

thorized by a governmental entity whose primary mis- sion is the provision of such services; and (C) that are not made commercially available to the

public by the provider. (2) QUALIFYING LOW-POWER TELEVISION STATIONS.—A sta-

tion is a qualifying low-power television station if, during the 90 days preceding the date of enactment of the Balanced Budg- et Act of 1997—

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(A) such station broadcast a minimum of 18 hours per day;

(B) such station broadcast an average of at least 3 hours per week of programming that was produced within the market area served by such station; and

SEC. 338. ø47 U.S.C. 338¿ CARRIAGE OF LOCAL TELEVISION SIGNALS BY SATELLITE CARRIERS.

(a) CARRIAGE OBLIGATIONS.— (1) IN GENERAL.—Each satellite carrier providing, under

section 122 of title 17, United States Code, secondary trans- missions to subscribers located within the local market of a tel- evision broadcast station of a primary transmission made by that station shall carry upon request the signals of all tele- vision broadcast stations located within that local market, sub- ject to section 325(b).

(2) REMEDIES FOR FAILURE TO CARRY.—In addition to the remedies available to television broadcast stations under sec- tion 501(f) of title 17, United States Code, the Commission may use the Commission’s authority under this Act to assure com- pliance with the obligations of this subsection, but in no in- stance shall a Commission enforcement proceeding be required as a predicate to the pursuit of a remedy available under such section 501(f).

(3) LOW POWER STATION CARRIAGE OPTIONAL.—No low power television station whose signals are provided under sec- tion 119(a)(14) of title 17, United States Code, shall be entitled to insist on carriage under this section, regardless of whether the satellite carrier provides secondary transmissions of the primary transmissions of other stations in the same local mar- ket pursuant to section 122 of such title, nor shall any such carriage be considered in connection with the requirements of subsection (c) of this section.

(4) CARRIAGE OF SIGNALS OF LOCAL STATIONS IN CERTAIN MARKETS.—A satellite carrier that offers multichannel video programming distribution service in the United States to more than 5,000,000 subscribers shall (A) within 1 year after the date of the enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, retransmit the signals origi- nating as analog signals of each television broadcast station lo- cated in any local market within a State that is not part of the contiguous United States, and (B) within 30 months after such date of enactment retransmit the signals originating as digital signals of each such station. The retransmissions of such sta- tions shall be made available to substantially all of the sat- ellite carrier’s subscribers in each station’s local market, and the retransmissions of the stations in at least one market in the State shall be made available to substantially all of the satellite carrier’s subscribers in areas of the State that are not within a designated market area. The cost to subscribers of such retransmissions shall not exceed the cost of retrans- missions of local television stations in other States. Within 1 year after the date of enactment of that Act, the Commission

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shall promulgate regulations concerning elections by television stations in such State between mandatory carriage pursuant to this section and retransmission consent pursuant to section 325(b), which shall take into account the schedule on which local television stations are made available to viewers in such State.

(5) NONDISCRIMINATION IN CARRIAGE OF HIGH DEFINITION SIGNALS OF NONCOMMERCIAL EDUCATIONAL TELEVISION STA- TIONS.—

(A) EXISTING CARRIAGE OF HIGH DEFINITION SIGNALS.— If, before the date of enactment of the Satellite Television Extension and Localism Act of 2010, an eligible satellite carrier is providing, under section 122 of title 17, United States Code, any secondary transmissions in high defini- tion format to subscribers located within the local market of a television broadcast station of a primary transmission made by that station, then such satellite carrier shall carry the signals in high-definition format of qualified non- commercial educational television stations located within that local market in accordance with the following sched- ule:

(i) By December 31, 2010, in at least 50 percent of the markets in which such satellite carrier provides such secondary transmissions in high definition for- mat.

(ii) By December 31, 2011, in every market in which such satellite carrier provides such secondary transmissions in high definition format. (B) NEW INITIATION OF SERVICE.—If, on or after the

date of enactment of the Satellite Television Extension and Localism Act of 2010, an eligible satellite carrier initiates the provision, under section 122 of title 17, United States Code, of any secondary transmissions in high definition format to subscribers located within the local market of a television broadcast station of a primary transmission made by that station, then such satellite carrier shall carry the signals in high-definition format of all qualified noncommercial educational television stations located within that local market.

(b) GOOD SIGNAL REQUIRED.— (1) COSTS.—A television broadcast station asserting its

right to carriage under subsection (a) shall be required to bear the costs associated with delivering a good quality signal to the designated local receive facility of the satellite carrier or to an- other facility that is acceptable to at least one-half the stations asserting the right to carriage in the local market.

(2) REGULATIONS.—The regulations issued under sub- section (g) shall set forth the obligations necessary to carry out this subsection. (c) DUPLICATION NOT REQUIRED.—

(1) COMMERCIAL STATIONS.—Notwithstanding subsection (a)(1), a satellite carrier shall not be required to carry upon re- quest the signal of any local commercial television broadcast station that substantially duplicates the signal of another local

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commercial television broadcast station which is secondarily transmitted by the satellite carrier within the same local mar- ket, or to carry upon request the signals of more than one local commercial television broadcast station in a single local mar- ket that is affiliated with a particular television network un- less such stations are licensed to communities in different States.

(2) NONCOMMERCIAL STATIONS.—The Commission shall prescribe regulations limiting the carriage requirements under subsection (a) of satellite carriers with respect to the carriage of multiple local noncommercial television broadcast stations. To the extent possible, such regulations shall provide the same degree of carriage by satellite carriers of such multiple stations as is provided by cable systems under section 615. (d) CHANNEL POSITIONING.—No satellite carrier shall be re-

quired to provide the signal of a local television broadcast station to subscribers in that station’s local market on any particular chan- nel number or to provide the signals in any particular order, except that the satellite carrier shall retransmit the signal of the local tel- evision broadcast stations to subscribers in the stations’ local mar- ket on contiguous channels and provide access to such station’s sig- nals at a nondiscriminatory price and in a nondiscriminatory man- ner on any navigational device, on-screen program guide, or menu.

(e) COMPENSATION FOR CARRIAGE.—A satellite carrier shall not accept or request monetary payment or other valuable consider- ation in exchange either for carriage of local television broadcast stations in fulfillment of the requirements of this section or for channel positioning rights provided to such stations under this sec- tion, except that any such station may be required to bear the costs associated with delivering a good quality signal to the local receive facility of the satellite carrier.

(f) REMEDIES.— (1) COMPLAINTS BY BROADCAST STATIONS.—Whenever a

local television broadcast station believes that a satellite car- rier has failed to meet its obligations under subsections (b) through (e) of this section, such station shall notify the carrier, in writing, of the alleged failure and identify its reasons for be- lieving that the satellite carrier failed to comply with such obli- gations. The satellite carrier shall, within 30 days after such written notification, respond in writing to such notification and comply with such obligations or state its reasons for believing that it is in compliance with such obligations. A local television broadcast station that disputes a response by a satellite carrier that it is in compliance with such obligations may obtain re- view of such denial or response by filing a complaint with the Commission. Such complaint shall allege the manner in which such satellite carrier has failed to meet its obligations and the basis for such allegations.

(2) OPPORTUNITY TO RESPOND.—The Commission shall af- ford the satellite carrier against which a complaint is filed under paragraph (1) an opportunity to present data and argu- ments to establish that there has been no failure to meet its obligations under this section.

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(3) REMEDIAL ACTIONS; DISMISSAL.—Within 120 days after the date a complaint is filed under paragraph (1), the Commis- sion shall determine whether the satellite carrier has met its obligations under subsections (b) through (e). If the Commis- sion determines that the satellite carrier has failed to meet such obligations, the Commission shall order the satellite car- rier to take appropriate remedial action. If the Commission de- termines that the satellite carrier has fully met the require- ments of such subsections, the Commission shall dismiss the complaint. (g) CARRIAGE OF LOCAL STATIONS ON A SINGLE RECEPTION AN-

TENNA.— (1) SINGLE RECEPTION ANTENNA.—Each satellite carrier

that retransmits the signals of local television broadcast sta- tions in a local market shall retransmit such stations in such market so that a subscriber may receive such stations by means of a single reception antenna and associated equipment.

(2) ADDITIONAL RECEPTION ANTENNA.—If the carrier re- transmits the signals of local television broadcast stations in a local market in high definition format, the carrier shall re- transmit such signals in such market so that a subscriber may receive such signals by means of a single reception antenna and associated equipment, but such antenna and associated equipment may be separate from the single reception antenna and associated equipment used to comply with paragraph (1). (h) ADDITIONAL NOTICES TO SUBSCRIBERS, NETWORKS, AND

STATIONS CONCERNING SIGNAL CARRIAGE.— (1) NOTICES TO AND ELECTIONS BY SUBSCRIBERS CON-

CERNING GRANDFATHERED SIGNALS.—Any carrier that provides a distant signal of a network station to a subscriber pursuant section 339(a)(2)(A) shall—

(A) within 60 days after the local signal of a network station of the same television network is available pursu- ant to section 338, or within 60 days after the date of en- actment of the Satellite Home Viewer Extension and Reau- thorization Act of 2004, whichever is later, send a notice to the subscriber—

(i) offering to substitute the local network signal for the duplicating distant network signal; and

(ii) informing the subscriber that, if the subscriber fails to respond in 60 days, the subscriber will lose the distant network signal but will be permitted to sub- scribe to the local network signal; and (B) if the subscriber—

(i) elects to substitute such local network signal within such 60 days, switch such subscriber to such local network signal within 10 days after the end of such 60-day period; or

(ii) fails to respond within such 60 days, terminate the distant network signal within 10 days after the end of such 60-day period.

(2) NOTICE TO STATION LICENSEES OF COMMENCEMENT OF LOCAL-INTO-LOCAL SERVICE.—

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(A) NOTICE REQUIRED.—Within 180 days after the date of enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, the Commission shall revise the regulations under this section relating to notice to broadcast station licensees to comply with the require- ments of this paragraph.

(B) CONTENTS OF COMMENCEMENT NOTICE.—The notice required by such regulations shall inform each television broadcast station licensee within any local market in which a satellite carrier proposes to commence carriage of signals of stations from that market, not later than 60 days prior to the commencement of such carriage—

(i) of the carrier’s intention to launch local-into- local service under this section in a local market, the identity of that local market, and the location of the carrier’s proposed local receive facility for that local market;

(ii) of the right of such licensee to elect carriage under this section or grant retransmission consent under section 325(b);

(iii) that such licensee has 30 days from the date of the receipt of such notice to make such election; and

(iv) that failure to make such election will result in the loss of the right to demand carriage under this section for the remainder of the 3-year cycle of car- riage under section 325. (C) TRANSMISSION OF NOTICES.—Such regulations shall

require that each satellite carrier shall transmit the no- tices required by such regulation via certified mail to the address for such television station licensee listed in the consolidated database system maintained by the Commis- sion.

(i) PRIVACY RIGHTS OF SATELLITE SUBSCRIBERS.— (1) NOTICE.—At the time of entering into an agreement to

provide any satellite service or other service to a subscriber and at least once a year thereafter, a satellite carrier shall pro- vide notice in the form of a separate, written statement to such subscriber which clearly and conspicuously informs the sub- scriber of—

(A) the nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information;

(B) the nature, frequency, and purpose of any disclo- sure which may be made of such information, including an identification of the types of persons to whom the disclo- sure may be made;

(D) the times and place at which the subscriber may have access to such information in accordance with para- graph (5); and

(E) the limitations provided by this section with re- spect to the collection and disclosure of information by a

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satellite carrier and the right of the subscriber under para- graphs (7) and (9) to enforce such limitations.

In the case of subscribers who have entered into such an agree- ment before the effective date of this subsection, such notice shall be provided within 180 days of such date and at least once a year thereafter.

(2) DEFINITIONS.—For purposes of this subsection, other than paragraph (9)—

(A) the term ‘‘personally identifiable information’’ does not include any record of aggregate data which does not identify particular persons;

(B) the term ‘‘other service’’ includes any wire or radio communications service provided using any of the facilities of a satellite carrier that are used in the provision of sat- ellite service; and

(C) the term ‘‘satellite carrier’’ includes, in addition to persons within the definition of satellite carrier, any per- son who—

(i) is owned or controlled by, or under common ownership or control with, a satellite carrier; and

(ii) provides any wire or radio communications service.

(3) PROHIBITIONS.— (A) CONSENT TO COLLECTION.—Except as provided in

subparagraph (B), a satellite carrier shall not use any fa- cilities used by the satellite carrier to collect personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.

(B) EXCEPTIONS.—A satellite carrier may use such fa- cilities to collect such information in order to—

(i) obtain information necessary to render a sat- ellite service or other service provided by the satellite carrier to the subscriber; or

(ii) detect unauthorized reception of satellite com- munications.

(4) DISCLOSURE.— (A) CONSENT TO DISCLOSURE.—Except as provided in

subparagraph (B), a satellite carrier shall not disclose per- sonally identifiable information concerning any subscriber without the prior written or electronic consent of the sub- scriber concerned and shall take such actions as are nec- essary to prevent unauthorized access to such information by a person other than the subscriber or satellite carrier.

(B) EXCEPTIONS.—A satellite carrier may disclose such information if the disclosure is—

(i) necessary to render, or conduct a legitimate business activity related to, a satellite service or other service provided by the satellite carrier to the sub- scriber;

(ii) subject to paragraph (9), made pursuant to a court order authorizing such disclosure, if the sub- scriber is notified of such order by the person to whom the order is directed;

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(iii) a disclosure of the names and addresses of subscribers to any satellite service or other service, if—

(I) the satellite carrier has provided the sub- scriber the opportunity to prohibit or limit such disclosure; and

(II) the disclosure does not reveal, directly or indirectly, the—

(aa) extent of any viewing or other use by the subscriber of a satellite service or other service provided by the satellite carrier; or

(bb) the nature of any transaction made by the subscriber over any facilities used by the satellite carrier; or

(iv) to a government entity as authorized under chapter 119, 121, or 206 of title 18, United States Code, except that such disclosure shall not include records revealing satellite subscriber selection of video programming from a satellite carrier.

(5) ACCESS BY SUBSCRIBER.—A satellite subscriber shall be provided access to all personally identifiable information re- garding that subscriber which is collected and maintained by a satellite carrier. Such information shall be made available to the subscriber at reasonable times and at a convenient place designated by such satellite carrier. A satellite subscriber shall be provided reasonable opportunity to correct any error in such information.

(6) DESTRUCTION OF INFORMATION.—A satellite carrier shall destroy personally identifiable information if the informa- tion is no longer necessary for the purpose for which it was col- lected and there are no pending requests or orders for access to such information under paragraph (5) or pursuant to a court order.

(7) PENALTIES.—Any person aggrieved by any act of a sat- ellite carrier in violation of this section may bring a civil action in a United States district court. The court may award—

(A) actual damages but not less than liquidated dam- ages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(B) punitive damages; and (C) reasonable attorneys’ fees and other litigation costs

reasonably incurred. The remedy provided by this subsection shall be in addition to any other lawful remedy available to a satellite subscriber.

(8) RULE OF CONSTRUCTION.—Nothing in this title shall be construed to prohibit any State from enacting or enforcing laws consistent with this section for the protection of subscriber pri- vacy.

(9) COURT ORDERS.—Except as provided in paragraph (4)(B)(iv), a governmental entity may obtain personally identi- fiable information concerning a satellite subscriber pursuant to a court order only if, in the court proceeding relevant to such court order—

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(A) such entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case; and

(B) the subject of the information is afforded the op- portunity to appear and contest such entity’s claim.

(j) REGULATIONS BY COMMISSION.—Within 1 year after the date of the enactment of this section, the Commission shall issue regula- tions implementing this section following a rulemaking proceeding. The regulations prescribed under this section shall include require- ments on satellite carriers that are comparable to the requirements on cable operators under sections 614(b)(3) and (4) and 615(g)(1) and (2).

(k) DEFINITIONS.—As used in this section: (1) DISTRIBUTOR.—The term ‘‘distributor’’ means an entity

which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers or indirectly through other program distribution entities.

(2) ELIGIBLE SATELLITE CARRIER.—The term ‘‘eligible sat- ellite carrier’’ means any satellite carrier that is not a party to a carriage contract that—

(A) governs carriage of at least 30 qualified non- commercial educational television stations; and

(B) is in force and effect within 150 days after the date of enactment of the Satellite Television Extension and Lo- calism Act of 2010. (3) LOCAL RECEIVE FACILITY.—The term ‘‘local receive facil-

ity’’ means the reception point in each local market which a satellite carrier designates for delivery of the signal of the sta- tion for purposes of retransmission.

(4) LOCAL MARKET.—The term ‘‘local market’’ has the meaning given that term under section 122( j) of title 17, United States Code.

(5) LOW POWER TELEVISION STATION.—The term ‘‘low power television station’’ means a low power television station as de- fined under section 74.701(f) of title 47, Code of Federal Regu- lations, as in effect on June 1, 2004. For purposes of this para- graph, the term ‘‘low power television station’’ includes a low power television station that has been accorded primary status as a Class A television licensee under section 73.6001(a) of title 47, Code of Federal Regulations.

(6) QUALIFIED NONCOMMERCIAL EDUCATIONAL TELEVISION STATION.—The term ‘‘qualified noncommercial educational tele- vision station’’ means any full-power television broadcast sta- tion that—

(A) under the rules and regulations of the Commission in effect on March 29, 1990, is licensed by the Commission as a noncommercial educational broadcast station and is owned and operated by a public agency, nonprofit founda- tion, nonprofit corporation, or nonprofit association; and

(B) has as its licensee an entity that is eligible to re- ceive a community service grant, or any successor grant

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thereto, from the Corporation for Public Broadcasting, or any successor organization thereto, on the basis of the for- mula set forth in section 396(k)(6)(B) of this title. (7) SATELLITE CARRIER.—The term ‘‘satellite carrier’’ has

the meaning given such term under section 119(d) of title 17, United States Code.

(8) SECONDARY TRANSMISSION.—The term ‘‘secondary transmission’’ has the meaning given such term in section 119(d) of title 17, United States Code.

(9) SUBSCRIBER.—The term ‘‘subscriber’’ has the meaning given that term under section 122( j) of title 17, United States Code.

(10) TELEVISION BROADCAST STATION.—The term ‘‘tele- vision broadcast station’’ has the meaning given such term in section 325(b)(7).

SEC. 339. ø47 U.S.C. 339¿ CARRIAGE OF DISTANT TELEVISION STATIONS BY SATELLITE CARRIERS.

(a) PROVISIONS RELATING TO CARRIAGE OF DISTANT SIGNALS.— (1) CARRIAGE PERMITTED.—

(A) IN GENERAL.—Subject to section 119 of title 17, United States Code, any satellite carrier shall be per- mitted to provide the signals of no more than two network stations in a single day for each television network to any household not located within the local markets of those network stations.

(B) ADDITIONAL SERVICE.—In addition to signals pro- vided under subparagraph (A), any satellite carrier may also provide service under the statutory license of section 122 of title 17, United States Code, to the local market within which such household is located. The service pro- vided under section 122 of such title may be in addition to the two signals provided under section 119 of such title. (2) REPLACEMENT OF DISTANT SIGNALS WITH LOCAL SIG-

NALS.—Notwithstanding any other provision of paragraph (1), the following rules shall apply after the date of enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004:

(A) RULES FOR GRANDFATHERED SUBSCRIBERS.— (i) FOR THOSE RECEIVING DISTANT SIGNALS.—In

the case of a subscriber of a satellite carrier who is eli- gible to receive the signal of a network station solely by reason of section 119(e) of title 17, United States Code (in this subparagraph referred to as a ‘‘distant signal’’), and who, as of October 1, 2009, is receiving the distant signal of that network station, the fol- lowing shall apply:

(I) In a case in which the satellite carrier makes available to the subscriber the signal of a local network station affiliated with the same tele- vision network pursuant to section 338, the car- rier may only provide the secondary transmissions of the distant signal of a station affiliated with the same network to that subscriber—

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(aa) if, within 60 days after receiving the notice of the satellite carrier under section 338(h)(1) of this Act, the subscriber elects to retain the distant signal; but

(bb) only until such time as the sub- scriber elects to receive such local signal. (II) Notwithstanding subclause (I), the carrier

may not retransmit the distant signal to any sub- scriber who is eligible to receive the signal of a network station solely by reason of section 119(e) of title 17, United States Code, unless such car- rier, within 60 days after the date of the enact- ment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, submits to that tele- vision network the list and statement required by subparagraph (F)(i). (ii) FOR THOSE NOT RECEIVING DISTANT SIGNALS.—

In the case of any subscriber of a satellite carrier who is eligible to receive the distant signal of a network station solely by reason of section 119(e) of title 17, United States Code, and who did not receive a distant signal of a station affiliated with the same network on October 1, 2009, the carrier may not provide the sec- ondary transmissions of the distant signal of a station affiliated with the same network to that subscriber. (B) RULES FOR OTHER SUBSCRIBERS.—

(i) IN GENERAL.—In the case of a subscriber of a satellite carrier who is eligible to receive the signal of a network station under this section (in this subpara- graph referred to as a ‘‘distant signal’’), other than subscribers to whom subparagraph (A) applies, the fol- lowing shall apply:

(I) In a case in which the satellite carrier makes available to that subscriber, on January 1, 2005, the signal of a local network station affili- ated with the same television network pursuant to section 338, the carrier may only provide the sec- ondary transmissions of the distant signal of a station affiliated with the same network to that subscriber if the subscriber’s satellite carrier, not later than March 1, 2005, submits to that tele- vision network the list and statement required by subparagraph (F)(i).

(II) In a case in which the satellite carrier does not make available to that subscriber, on January 1, 2005, the signal of a local network sta- tion pursuant to section 338, the carrier may only provide the secondary transmissions of the distant signal of a station affiliated with the same net- work to that subscriber if—

(aa) that subscriber seeks to subscribe to such distant signal before the date on which such carrier commences to carry pursuant to section 338 the signals of stations from the

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1 The amendment made by section 204(b)(1)(B)(iv)(I) of Public Law 111–175 was executed to the probable intent of Congress. Such section provides for an amendment to strike the term ‘‘analog’’. The term appeared also appeared in clause (ii).

2 So in law. See amendment made by section 204(b)(1)(B)(iv)(II) of Public Law 111–175.

local market of such local network station; and

(bb) the satellite carrier, within 60 days after such date, submits to each television network the list and statement required by subparagraph (F)(ii).

(ii) SPECIAL CIRCUMSTANCES.—A subscriber of a satellite carrier who was lawfully receiving the distant signal of a network station on the day before the date of enactment of the Satellite Television Extension and Localism Act of 2010 may receive both such distant signal and the local signal of a network station affili- ated with the same network until such subscriber chooses to no longer receive such distant signal from such carrier, whether or not such subscriber elects to subscribe to such local signal. (C) FUTURE APPLICABILITY.—A satellite carrier may

not provide a distant 1 signal (within the meaning of sub- paragraph (A) or (B)) to a person who—

(i) is not a subscriber lawfully receiving such sec- ondary transmission as of the date of the enactment of the 2 Satellite Television Extension and Localism Act of 2010 and, at the time such person seeks to sub- scribe to receive such secondary transmission, resides in a local market where the satellite carrier makes available to that person the signal of a local network station affiliated with the same television network pursuant to section 338 (and the retransmission of such signal by such carrier can reach such subscriber); or

(ii) lawfully subscribes to and receives a distant signal on or after the date of enactment of the Sat- ellite Television Extension and Localism Act of 2010, and, subsequent to such subscription, the satellite car- rier makes available to that subscriber the signal of a local network station affiliated with the same network as the distant signal (and the retransmission of such signal by such carrier can reach such subscriber), un- less such person subscribes to the signal of the local network station within 60 days after such signal is made available. (D) SPECIAL RULES FOR DISTANT SIGNALS.—

(i) ELIGIBILITY AND SIGNAL TESTING.—A subscriber of a satellite carrier shall be eligible to receive a dis- tant signal of a network station affiliated with the same network under this section if, with respect to a local network station, such subscriber—

(I) is a subscriber whose household is not pre- dicted by the model specified in subsection (c)(3) to receive the signal intensity required under sec-

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tion 73.622(e)(1) or, in the case of a low-power sta- tion or translator station transmitting an analog signal, section 73.683(a) of title 47, Code of Fed- eral Regulations, or a successor regulation;

(II) is determined, based on a test conducted in accordance with section 73.686(d) of title 47, Code of Federal Regulations, or any successor reg- ulation, not to be able to receive a signal that ex- ceeds the signal intensity standard in section 73.622(e)(1) or, in the case of a low-power station or translator station transmitting an analog sig- nal, section 73.683(a) of such title, or a successor regulation; or

(III) is in an unserved household, as deter- mined under section 119(d)(10)(A) of title 17, United States Code. (ii) PRE-ENACTMENT DISTANT SIGNAL SUB-

SCRIBERS.—Any eligible subscriber under this subpara- graph who is a lawful subscriber to such a distant sig- nal as of the date of enactment of the Satellite Tele- vision Extension and Localism Act of 2010 may con- tinue to receive such distant signal.

(iii) TIME-SHIFTING PROHIBITED.—In a case in which the satellite carrier makes available to an eligi- ble subscriber under this subparagraph the signal of a local network station pursuant to section 338, the car- rier may only provide the distant signal of a station affiliated with the same network to that subscriber if, in the case of any local market in the 48 contiguous States of the United States, the distant signal is the secondary transmission of a station whose prime time network programming is generally broadcast simulta- neously with, or later than, the prime time network programming of the affiliate of the same network in the local market.

(iv) SAVINGS PROVISION.—Nothing in this subpara- graph shall be construed to affect a satellite carrier’s obligations under section 338. (E) AUTHORITY TO GRANT STATION-SPECIFIC WAIVERS.—

This paragraph shall not prohibit a retransmission of a distant signal of any distant network station to any sub- scriber to whom the signal of a local network station affili- ated with the same network is available, if and to the ex- tent that such local network station has affirmatively granted a waiver from the requirements of this paragraph to such satellite carrier with respect to retransmission of such distant network station to such subscriber.

(F) NOTICES TO NETWORKS OF DISTANT SIGNAL SUB- SCRIBERS.—

(i) Within 60 days after the date of enactment of the Satellite Home Viewer Extension and Reauthoriza- tion Act of 2004, each satellite carrier that provides a distant signal of a network station to a subscriber pur-

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1 So in law. The period following the words ‘‘continuing violation’’ should appear at the end of the paragraph. See amendment made by section 204(a)(4) of the Satellite Home Viewer Ex- tension and Reauthorization Act of 2004 (Public Law 108–447; 118 Stat. 3416).

suant to subparagraph (A) or (B)(i) of this paragraph shall submit to each network—

(I) a list, aggregated by designated market area, identifying each subscriber provided such a signal by—

(aa) name; (bb) address (street or rural route num-

ber, city, State, and zip code); and (cc) the distant network signal or signals

received; and (II) a statement that, to the best of the car-

rier’s knowledge and belief after having made dili- gent and good faith inquiries, the subscriber is qualified under the existing law to receive the dis- tant network signal or signals pursuant to sub- paragraph (A) or (B)(i) of this paragraph. (ii) Within 60 days after the date a satellite car-

rier commences to carry pursuant to section 338 the signals of stations from a local market, such a satellite carrier that provides a distant signal of a network sta- tion to a subscriber pursuant to subparagraph (B)(ii) of this paragraph shall submit to each network—

(I) a list identifying each subscriber in that local market provided such a signal by—

(aa) name; (bb) address (street or rural route num-

ber, city, State, and zip code); and (cc) the distant network signal or signals

received; and (II) a statement that, to the best of the car-

(G) OTHER PROVISIONS NOT AFFECTED.—This para- graph shall not affect the eligibility of a subscriber to re- ceive secondary transmissions under section 340 of this Act or as an unserved household included under section 119(a)(12) of title 17, United States Code.

(H) AVAILABLE DEFINED.—For purposes of this para- graph, a satellite carrier makes available a local signal to a subscriber or person if the satellite carrier offers that local signal to other subscribers who reside in the same zip code as that subscriber or person. (3) PENALTY FOR VIOLATION.—Any satellite carrier that

knowingly and willfully provides the signals of television sta- tions to subscribers in violation of this subsection shall be lia- ble for a forfeiture penalty under section 503 in the amount of $50,000 for each violation or each day of a continuing viola- tion., 1 except that paragraph (2)(D) of this subsection, relating

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to the provision of distant digital signals, shall be enforceable under the provisions of section 340(f) (b) EXTENSION OF NETWORK NONDUPLICATION, SYNDICATED EX-

CLUSIVITY, AND SPORTS BLACKOUT TO SATELLITE RETRANS- MISSION.—

(1) EXTENSION OF PROTECTIONS.—Within 45 days after the date of the enactment of the Satellite Home Viewer Improve- ment Act of 1999, the Commission shall commence a single rulemaking proceeding to establish regulations that—

(A) apply network nonduplication protection (47 CFR 76.92) syndicated exclusivity protection (47 CFR 76.151), and sports blackout protection (47 CFR 76.67) to the re- transmission of the signals of nationally distributed super- stations by satellite carriers to subscribers; and

(B) to the extent technically feasible and not economi- cally prohibitive, apply sports blackout protection (47 CFR 76.67) to the retransmission of the signals of network sta- tions by satellite carriers to subscribers. (2) DEADLINE FOR ACTION.—The Commission shall com-

plete all actions necessary to prescribe regulations required by this section so that the regulations shall become effective with- in 1 year after such date of enactment. (c) ELIGIBILITY FOR RETRANSMISSION.—

(1) STUDY OF DIGITAL STRENGTH TESTING PROCEDURES.— (A) STUDY REQUIRED.—Not later than 1 year after the

date of the enactment of the Satellite Home Viewer Exten- sion and Reauthorization Act of 2004, the Federal Commu- nications Commission shall complete an inquiry regarding whether, for purposes of identifying if a household is unserved by an adequate digital signal under section 119(d)(10) of title 17, United States Code, the digital signal strength standard in section 73.622(e)(1) of title 47, Code of Federal Regulations, or the testing procedures in section 73.686(d) of title 47, Code of Federal Regulations, such statutes or regulations should be revised to take into ac- count the types of antennas that are available to con- sumers.

(B) STUDY CONSIDERATIONS.—In conducting the study under this paragraph, the Commission shall consider whether—

(i) to account for the fact that an antenna can be mounted on a roof or placed in a home and can be fixed or capable of rotating;

(ii) section 73.686(d) of title 47, Code of Federal Regulations, should be amended to create different procedures for determining if the requisite digital sig- nal strength is present than for determining if the req- uisite analog signal strength is present;

(iii) a standard should be used other than the presence of a signal of a certain strength to ensure that a household can receive a high-quality picture using antennas of reasonable cost and ease of installa- tion;

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238Sec. 339 COMMUNICATIONS ACT OF 1934

(iv) to develop a predictive methodology for deter- mining whether a household is unserved by an ade- quate digital signal under section 119(d)(10) of title 17, United States Code;

(v) there is a wide variation in the ability of rea- sonably priced consumer digital television sets to re- ceive over-the-air signals, such that at a given signal strength some may be able to display high-quality pic- tures while others cannot, whether such variation is related to the price of the television set, and whether such variation should be factored into setting a stand- ard for determining whether a household is unserved by an adequate digital signal; and

(vi) to account for factors such as building loss, ex- ternal interference sources, or undesired signals from both digital television and analog television stations using either the same or adjacent channels in nearby markets, foliage, and man-made clutter. (C) REPORT.—Not later than 1 year after the date of

the enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, the Federal Communications Commission shall submit to the Committee on Energy and Commerce of the House of Representatives and the Com- mittee on Commerce, Science, and Transportation of the Senate a report containing—

(i) the results of the study under this paragraph; and

(ii) recommendations, if any, as to what changes should be made to Federal statutes or regulations.

(2) WAIVERS.—A subscriber who is denied the retrans- mission of a signal of a network station under section 119 of title 17, United States Code, may request a waiver from such denial by submitting a request, through such subscriber’s sat- ellite carrier, to the network station asserting that the retrans- mission is prohibited. The network station shall accept or re- ject a subscriber’s request for a waiver within 30 days after re- ceipt of the request. The subscriber shall be permitted to re- ceive such retransmission under section 119(d)(10)(B) of title 17, United States Code, if such station agrees to the waiver re- quest and files with the satellite carrier a written waiver with respect to that subscriber allowing the subscriber to receive such retransmission. If a television network station fails to ac- cept or reject a subscriber’s request for a waiver within the 30- day period after receipt of the request, that station shall be deemed to agree to the waiver request and have filed such written waiver.

(3) ESTABLISHMENT OF IMPROVED PREDICTIVE MODEL AND ON-LOCATION TESTING REQUIRED.—

(A) PREDICTIVE MODEL.—Within 270 days after the date of the enactment of the Satellite Television Extension and Localism Act of 2010, the Commission shall develop and prescribe by rule a point-to-point predictive model for reliably and presumptively determining the ability of indi- vidual locations, through the use of an antenna, to receive

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signals in accordance with the signal intensity standard in section 73.622(e)(1) of title 47, Code of Federal Regula- tions, or a successor regulation, including to account for the continuing operation of translator stations and low power television stations. In prescribing such model, the Commission shall rely on the Individual Location Longley- Rice model set forth by the Commission in CS Docket No. 98–201, as previously revised with respect to analog sig- nals, and as recommended by the Commission with respect to digital signals in its Report to Congress in ET Docket No. 05–182, FCC 05–199 (released December 9, 2005). The Commission shall establish procedures for the continued refinement in the application of the model by the use of additional data as it becomes available.

(B) ON-LOCATION TESTING.—The Commission shall issue an order completing its rulemaking proceeding in ET Docket No. 06–94 within 270 days after the date of enact- ment of the Satellite Television Extension and Localism Act of 2010. In conducting such rulemaking, the Commis- sion shall seek ways to minimize consumer burdens associ- ated with on-location testing. (4) OBJECTIVE VERIFICATION.—

(A) IN GENERAL.—If a subscriber’s request for a waiver under paragraph (2) is rejected and the subscriber submits to the subscriber’s satellite carrier a request for a test verifying the subscriber’s inability to receive a signal of the signal intensity referenced in clause (i) of subsection (a)(2)(D), the satellite carrier and the network station or stations asserting that the retransmission is prohibited with respect to that subscriber shall select a qualified and independent person to conduct the test referenced in such clause. Such test shall be conducted within 30 days after the date the subscriber submits a request for the test. If the written findings and conclusions of a test conducted in accordance with such clause demonstrate that the sub- scriber does not receive a signal that meets or exceeds the requisite signal intensity standard in such clause, the sub- scriber shall not be denied the retransmission of a signal of a network station under section 119(d)(10)(A) of title 17, United States Code.

(B) DESIGNATION OF TESTER AND ALLOCATION OF COSTS.—If the satellite carrier and the network station or stations asserting that the retransmission is prohibited are unable to agree on such a person to conduct the test, the person shall be designated by an independent and neutral entity designated by the Commission by rule. Unless the satellite carrier and the network station or stations other- wise agree, the costs of conducting the test under this paragraph shall be borne by the satellite carrier, if the sta- tion’s signal meets or exceeds such requisite signal inten- sity standard, or by the network station, if its signal fails to meet or exceed such standard.

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240Sec. 339 COMMUNICATIONS ACT OF 1934

(C) AVOIDANCE OF UNDUE BURDEN.— Commission reg- ulations prescribed under this paragraph shall seek to avoid any undue burden on any party.

(D) REDUCTION OF VERIFICATION BURDENS.—Within 1 year after the date of enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, the Commission shall by rule exempt from the verification re- quirements of subparagraph (A) any request for a test made by a subscriber to a satellite carrier to whom the re- transmission of the signals of local broadcast stations is available under section 338 from such carrier.

(E) EXCEPTION.—A satellite carrier may refuse to en- gage in the testing process. If the carrier does so refuse, a subscriber in a local market in which the satellite carrier does not offer the signals of local broadcast stations under section 338 may, at his or her own expense, authorize a signal intensity test to be performed pursuant to the proce- dures specified by the Commission in section 73.686(d) of title 47, Code of Federal Regulations, by a tester who is approved by the satellite carrier and by each affected net- work station, or who has been previously approved by the satellite carrier and by each affected network station but not previously disapproved. A tester may not be so dis- approved for a test after the tester has commenced such test. The tester shall give 5 business days advance written notice to the satellite carrier and to the affected network station or stations. A signal intensity test conducted in ac- cordance with this subparagraph shall be determinative of the signal strength received at that household for purposes of determining whether the household is capable of receiv- ing a signal. (5) DEFINITION.—Notwithstanding subsection (d)(4), for

purposes of paragraphs (2) and (4) of this subsection, the term ‘‘satellite carrier’’ includes a distributor (as defined in section 119(d)(1) of title 17, United States Code), but only if the sat- ellite distributor’s relationship with the subscriber includes billing, collection, service activation, and service deactivation. (d) DEFINITIONS.—For the purposes of this section:

(1) LOCAL MARKET.—The term ‘‘local market’’ has the meaning given that term under section 122( j) of title 17, United States Code.

(2) NATIONALLY DISTRIBUTED SUPERSTATION.—The term ‘‘nationally distributed superstation’’ means a television broad- cast station, licensed by the Commission, that—

(A) is not owned or operated by or affiliated with a tel- evision network that, as of January 1, 1995, offered inter- connected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television li- censees in 10 or more States;

(B) on May 1, 1991, was retransmitted by a satellite carrier and was not a network station at that time; and

(C) was, as of July 1, 1998, retransmitted by a sat- ellite carrier under the statutory license of section 119 of title 17, United States Code.

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(3) NETWORK STATION.—The term ‘‘network station’’ has the meaning given such term under section 119(d) of title 17, United States Code.

(4) SATELLITE CARRIER.—The term ‘‘satellite carrier’’ has the meaning given such term under section 119(d) of title 17, United States Code.

(5) TELEVISION NETWORK.—The term ‘‘television network’’ means a television network in the United States which offers an interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated broadcast stations in 10 or more States.

SEC. 340. ø47 U.S.C. 340¿ SIGNIFICANTLY VIEWED SIGNALS PERMITTED TO BE CARRIED.

(a) SIGNIFICANTLY VIEWED STATIONS.—In addition to the broadcast signals that subscribers may receive under section 338 and 339, a satellite carrier is also authorized to retransmit to a subscriber located in a community the signal of any station located outside the local market in which such subscriber is located, to the extent such signal—

(1) has, before the date of enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, been deter- mined by the Federal Communications Commission to be a sig- nal a cable operator may carry as significantly viewed in such community, except to the extent that such signal is prevented from being carried by a cable system in such community under the Commission’s network nonduplication and syndicated ex- clusivity rules; or

(2) is, after such date of enactment, determined by the Commission to be significantly viewed in such community in accordance with the same standards and procedures con- cerning shares of viewing hours and audience surveys as are applicable under the rules, regulations, and authorizations of the Commission to determining with respect to a cable system whether signals are significantly viewed in a community. (b) LIMITATIONS.—

(1) SERVICE LIMITED TO SUBSCRIBERS TAKING LOCAL-INTO- LOCAL SERVICE.—This section shall apply only to retrans- missions to subscribers of a satellite carrier who receive re- transmissions of a signal from that satellite carrier pursuant to section 338.

(2) SERVICE LIMITATIONS.—A satellite carrier may re- transmit to a subscriber in high definition format the signal of a station determined by the Commission to be significantly viewed under subsection (a) only if such carrier also retrans- mits in high definition format the signal of a station located in the local market of such subscriber and affiliated with the same network whenever such format is available from such station.

(3) LIMITATION NOT APPLICABLE WHERE NO NETWORK AF- FILIATES.—The limitations in paragraphs (1) and (2) shall not prohibit a retransmission under this section to a subscriber lo- cated in a local market in which there are no network stations affiliated with the same television network as the station whose signal is being retransmitted pursuant to this section.

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(4) AUTHORITY TO GRANT STATION-SPECIFIC WAIVERS.— Paragraphs (1) and (2) shall not prohibit a retransmission of a network station to a subscriber if and to the extent that the network station in the local market in which the subscriber is located, and that is affiliated with the same television network, has privately negotiated and affirmatively granted a waiver from the requirements of paragraph (1) and (2) to such sat- ellite carrier with respect to retransmission of the significantly viewed station to such subscriber. (c) PUBLICATION AND MODIFICATIONS OF LISTS; REGULATIONS.—

(1) IN GENERAL.—The Commission shall— (A) within 60 days after the date of enactment of the

Satellite Home Viewer Extension and Reauthorization Act of 2004—

(i) publish a list of the stations that are eligible for retransmission under subsection (a)(1) and the communities in which such stations are eligible for such retransmission; and

(ii) commence a rulemaking proceeding to imple- ment this section by publication of a notice of proposed rulemaking; (B) adopt rules pursuant to such rulemaking within 1

year after such date of enactment. (2) PUBLIC AVAILABILITY OF LIST.—The Commission shall

make readily available to the public in electronic form, on the Internet website of the Commission or other comparable facil- ity, a list of the stations that are eligible for retransmission under subsection (a) and the communities in which such sta- tions are eligible for such retransmission. The Commission shall update such list within 10 business days after the date on which the Commission issues an order making any modi- fication of such stations and communities.

(3) MODIFICATIONS.—In addition to cable operators and tel- evision broadcast station licensees, the Commission shall per- mit a satellite carrier to petition for decisions and orders—

(A) by which stations may be added to those that are eligible for retransmission under subsection (a), and by which communities may be added in which such stations are eligible for such retransmission; and

(B) by which network nonduplication or syndicated ex- clusivity regulations are applied to the retransmission in accordance with subsection (e).

(d) EFFECT ON OTHER OBLIGATIONS AND RIGHTS.— (1) NO EFFECT ON CARRIAGE OBLIGATIONS.—Carriage of a

signal under this section is not mandatory, and any right of a station licensee to have the signal of such station carried under section 338 is not affected by the eligibility of such station to be carried under this section.

(2) RETRANSMISSION CONSENT RIGHTS NOT AFFECTED.—The eligibility of the signal of a station to be carried under this sec- tion does not affect any right of the licensee of such station to grant (or withhold) retransmission consent under section 325(b)(1).

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(e) NETWORK NONDUPLICATION AND SYNDICATED EXCLU- SIVITY.—

(1) NOT APPLICABLE EXCEPT AS PROVIDED BY COMMISSION REGULATIONS.—Signals eligible to be carried under this section are not subject to the Commission’s regulations concerning net- work nonduplication or syndicated exclusivity unless, pursuant to regulations adopted by the Commission, the Commission de- termines to permit network nonduplication or syndicated ex- clusivity to apply within the appropriate zone of protection.

(2) LIMITATION.—Nothing in this subsection or Commission regulations shall permit the application of network nonduplica- tion or syndicated exclusivity regulations to the retransmission of distant signals of network stations that are carried by a sat- ellite carrier pursuant to a statutory license under section 119(a)(2)(A) or (B) of title 17, United States Code, with respect to persons who reside in unserved households, under 119(a)(4)(A), or under section 119(a)(12), of such title. (f) ENFORCEMENT.—

(1) ORDERS AND DAMAGES.—Upon complaint, the Commis- sion shall issue a cease and desist order to any satellite carrier found to have violated this section in carrying any television broadcast station. Such order may, if a complaining station re- quests damages—

(A) provide for the award of damages to a complaining station that establishes that the violation was committed in bad faith, in an amount up to $50 per subscriber, per station, per day of the violation; and

(B) provide for the award of damages to a prevailing satellite carrier if the Commission determines that the complaint was frivolous, in an amount up to $50 per sub- scriber alleged to be in violation, per station alleged, per day of the alleged violation. (2) COMMISSION DECISION.—The Commission shall issue a

final determination resolving a complaint brought under this subsection not later than 180 days after the submission of a complaint under this subsection. The Commission may hear witnesses 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.

(3) REMEDIES IN ADDITION.—The remedies under this sub- section are in addition to any remedies available under title 17, United States Code.

(4) NO EFFECT ON COPYRIGHT PROCEEDINGS.—Any deter- mination, action, or failure to act of the Commission under this subsection shall have no effect on any proceeding under title 17, United States Code, and shall not be introduced in evi- dence in any proceeding under that title. In no instance shall a Commission enforcement proceeding under this subsection be required as a predicate to the pursuit of a remedy available under title 17. (g) NOTICES CONCERNING SIGNIFICANTLY VIEWED STATIONS.—

Each satellite carrier that proposes to commence the retrans-

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244Sec. 340 COMMUNICATIONS ACT OF 1934

mission of a station pursuant to this section in any local market shall—

(1) not less than 60 days before commencing such retrans- mission, provide a written notice to any television broadcast station in such local market of such proposal; and

(2) designate on such carrier’s website all significantly viewed signals carried pursuant to section 340 and the commu- nities in which the signals are carried. (h) ADDITIONAL CORRESPONDING CHANGES IN REGULATIONS.—

(1) COMMUNITY-BY-COMMUNITY ELECTIONS.—The Commis- sion shall, no later than October 30, 2005, revise section 76.66 of its regulations (47 CFR 76.66), concerning satellite broadcast signal carriage, to permit (at the next cycle of elections under section 325) a television broadcast station that is located in a local market into which a satellite carrier retransmits a tele- vision broadcast station pursuant to section 338, to elect, with respect to such satellite carrier, between retransmission con- sent pursuant to such section 325 and mandatory carriage pur- suant to section 338 separately for each county within such station’s local market, if—

(A) the satellite carrier has notified the station, pursu- ant to paragraph (3), that it intends to carry another affil- iate of the same network pursuant to this section during the relevant election period in the station’s local market; or

(B) on the date notification under paragraph (3) was due, the satellite carrier was retransmitting into the sta- tion’s local market pursuant to this section an affiliate of the same television network. (2) UNIFIED NEGOTIATIONS.—In revising its regulations as

required by paragraph (1), the Commission shall provide that any such station shall conduct a unified negotiation for the en- tire portion of its local market for which retransmission con- sent is elected.

(3) ADDITIONAL PROVISIONS.—The Commission shall, no later than October 30, 2005, revise its regulations to provide the following:

(A) NOTIFICATIONS BY SATELLITE CARRIER.—A satellite carrier’s retransmission of television broadcast stations pursuant to this section shall be subject to the following limitations:

(i) In any local market in which the satellite car- rier provides service pursuant to section 338 on the date of enactment of the Satellite Home Viewer Exten- sion and Reauthorization Act of 2004, the carrier may notify a television broadcast station in that market, at least 60 days prior to any date on which the station must thereafter make an election under section 76.66 of the Commission’s regulations (47 CFR 76.66), of—

(I) each affiliate of the same television net- work that the carrier reserves the right to re- transmit into that station’s local market pursuant to this section during the next election cycle under such section of such regulations; and

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(II) for each such affiliate, the communities into which the satellite carrier reserves the right to make such retransmissions. (ii) In any local market in which the satellite car-

rier commences service pursuant to section 338 after the date of enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, the carrier may notify a station in that market, at least 60 days prior to the introduction of such service in that mar- ket, and thereafter at least 60 days prior to any date on which the station must thereafter make an election under section 76.66 of the Commission’s regulations (47 CFR 76.66), of each affiliate of the same television network that the carrier reserves the right to re- transmit into that station’s local market during the next election cycle under such section of such regula- tions.

(iii) Beginning with the 2005 election cycle, a sat- ellite carrier may only retransmit pursuant to this sec- tion during the pertinent election period a signal—

(I) as to which it has provided the notifica- tions set forth in clauses (i) and (ii); or

(II) that it was retransmitting into the local market under this section as of the date such noti- fications were due.

(B) HARMONIZATION OF ELECTIONS AND RETRANS- MISSION CONSENT AGREEMENTS.—If a satellite carrier noti- fies a television broadcast station that it reserves the right to retransmit an affiliate of the same television network during the next election cycle pursuant to this section, the station may choose between retransmission consent and mandatory carriage for any portion of the 3-year election cycle that is not covered by an existing retransmission con- sent agreement.

(i) DEFINITIONS.—As used in this section: (1) LOCAL MARKET; SATELLITE CARRIER; SUBSCRIBER; TELE-

VISION BROADCAST STATION.—The terms ‘‘local market’’, ‘‘sat- ellite carrier’’, ‘‘subscriber’’, and ‘‘television broadcast station’’ have the meanings given such terms in section 338(k).

(2) NETWORK STATION; TELEVISION NETWORK.—The terms ‘‘network station’’ and ‘‘television network’’ have the meanings given such terms in section 339(d).

(3) COMMUNITY.—The term ‘‘community’’ means— (A) a county or a cable community, as determined

under the rules, regulations, and authorizations of the Commission applicable to determining with respect to a cable system whether signals are significantly viewed; or

(B) a satellite community, as determined under such rules, regulations, and authorizations (or revisions thereof) as the Commission may prescribe in implementing the re- quirements of this section.

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1 The placement of section 341 after section 340 (as added by section 211 of Satellite Home Viewer Extension and Reauthorization Act of 2004; Public Law 108–447; 118 Stat. 3430) reflects the probable intent of Congress even though the amendment instruction provides to insert a new section 341 ‘‘after section 339’’.

SEC. 341. ø47 U.S.C. 341¿ CARRIAGE OF TELEVISION SIGNALS TO CER- TAIN SUBSCRIBERS. 1

(a)(1) IN GENERAL.—A cable operator or satellite carrier may elect to retransmit, to subscribers in an eligible county.—

(A) any television broadcast stations that are located in the State in which the county is located and that any cable op- erator or satellite carrier was retransmitting to subscribers in the county on January 1, 2004; or

(B) up to 2 television broadcast stations located in the State in which the county is located, if the number of television broadcast stations that the cable operator or satellite carrier is authorized to carry under paragraph (1) is less than 3. (2) DEEMED SIGNIFICANTLY VIEWED.—A station described in

subsection (a) is deemed to be significantly viewed in the eligible county within the meaning of section 76.54 of the Commission’s regulations (47 CFR 76.54).

(3) DEFINITION OF ELIGIBLE COUNTY.—For purposes of this sec- tion, the term ‘‘eligible county’’ means any 1 of 4 counties that—

(A) are all in a single State; (B) on January 1, 2004, were each in designated market

areas in which the majority of counties were located in another State or States; and

(C) as a group had a combined total of 41,340 television households according to the U.S. Television Household Esti- mates by Nielsen Media Research for 2003–2004. (4) LIMITATION.—Carriage of a station under this section shall

be at the option of the cable operator or satellite carrier. (b) CERTAIN MARKETS.—Notwithstanding any other provision

of law, a satellite carrier may not carry the signal of a television station into an adjacent local market that is comprised of only a portion of a county, other than to unserved households located in that county. SEC. 342. ø47 U.S.C. 342¿ PROCESS FOR ISSUING QUALIFIED CARRIER

CERTIFICATION. (a) CERTIFICATION.—The Commission shall issue a certification

for the purposes of section 119(g)(3)(A)(iii) of title 17, United States Code, if the Commission determines that—

(1) a satellite carrier is providing local service pursuant to the statutory license under section 122 of such title in each designated market area; and

(2) with respect to each designated market area in which such satellite carrier was not providing such local service as of the date of enactment of the Satellite Television Extension and Localism Act of 2010—

(A) the satellite carrier’s satellite beams are designed, and predicted by the satellite manufacturer’s pre-launch test data, to provide a good quality satellite signal to at least 90 percent of the households in each such designated market area based on the most recent census data released by the United States Census Bureau; and

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247 Sec. 342COMMUNICATIONS ACT OF 1934

(B) there is no material evidence that there has been a satellite or sub-system failure subsequent to the sat- ellite’s launch that precludes the ability of the satellite carrier to satisfy the requirements of subparagraph (A).

(b) INFORMATION REQUIRED.—Any entity seeking the certifi- cation provided for in subsection (a) shall submit to the Commis- sion the following information:

(1) An affidavit stating that, to the best of the affiant’s knowledge, the satellite carrier provides local service in all des- ignated market areas pursuant to the statutory license pro- vided for in section 122 of title 17, United States Code, and listing those designated market areas in which local service was provided as of the date of enactment of the Satellite Tele- vision Extension and Localism Act of 2010.

(2) For each designated market area not listed in para- graph (1):

(A) Identification of each such designated market area and the location of its local receive facility.

(B) Data showing the number of households, and maps showing the geographic distribution thereof, in each such designated market area based on the most recent census data released by the United States Census Bureau.

(C) Maps, with superimposed effective isotropically ra- diated power predictions obtained in the satellite manufac- turer’s pre-launch tests, showing that the contours of the carrier’s satellite beams as designed and the geographic area that the carrier’s satellite beams are designed to cover are predicted to provide a good quality satellite sig- nal to at least 90 percent of the households in such des- ignated market area based on the most recent census data released by the United States Census Bureau.

(D) For any satellite relied upon for certification under this section, an affidavit stating that, to the best of the affiant’s knowledge, there have been no satellite or sub- system failures subsequent to the satellite’s launch that would degrade the design performance to such a degree that a satellite transponder used to provide local service to any such designated market area is precluded from deliv- ering a good quality satellite signal to at least 90 percent of the households in such designated market area based on the most recent census data released by the United States Census Bureau.

(E) Any additional engineering, designated market area, or other information the Commission considers nec- essary to determine whether the Commission shall grant a certification under this section.

days for public comment on a request for certification under this section.

(2) DEADLINE FOR DECISION.—The Commission shall grant or deny a request for certification within 90 days after the date on which such request is filed.

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248Sec. 351 COMMUNICATIONS ACT OF 1934

(d) SUBSEQUENT AFFIRMATION.—An entity granted qualified carrier status pursuant to section 119(g) of title 17, United States Code, shall file an affidavit with the Commission 30 months after such status was granted stating that, to the best of the affiant’s knowledge, it is in compliance with the requirements for a qualified carrier.

(e) DEFINITIONS.—For the purposes of this section: (1) DESIGNATED MARKET AREA.—The term ‘‘designated

market area’’ has the meaning given such term in section 122(j)(2)(C) of title 17, United States Code.

(2) GOOD QUALITY SATELLITE SIGNAL.— (A) IN GENERAL.—The term ‘‘good quality satellite sig-

nal’’ means— (i) a satellite signal whose power level as designed

shall achieve reception and demodulation of the signal at an availability level of at least 99.7 percent using—

(I) models of satellite antennas normally used by the satellite carrier’s subscribers; and

(II) the same calculation methodology used by the satellite carrier to determine predicted signal availability in the top 100 designated market areas; and (ii) taking into account whether a signal is in

standard definition format or high definition format, compression methodology, modulation, error correc- tion, power level, and utilization of advances in tech- nology that do not circumvent the intent of this sec- tion to provide for non-discriminatory treatment with respect to any comparable television broadcast station signal, a video signal transmitted by a satellite carrier such that—

(I) the satellite carrier treats all television broadcast stations’ signals the same with respect to statistical multiplexer prioritization; and

(II) the number of video signals in the rel- evant satellite transponder is not more than the then current greatest number of video signals car- ried on any equivalent transponder serving the top 100 designated market areas.

(B) DETERMINATION.—For the purposes of subpara- graph (A), the top 100 designated market areas shall be as determined by Nielsen Media Research and published in the Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication as of the date of a satellite car- rier’s application for certification under this section.

PART II—RADIO EQUIPMENT AND RADIO OPERATORS ON BOARD SHIP

SEC. 351. ø47 U.S.C. 351¿ SHIP RADIO STATIONS AND OPERATIONS. (a) Except as provided in section 352 hereof it shall be unlaw-

ful—

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249 Sec. 352COMMUNICATIONS ACT OF 1934

(1) For any ship of the United States, other than a cargo ship of less than three hundred gross tons, to be navigated in the open sea outside of a harbor or port, or for any ship of the United States or any foreign country, other than a cargo ship of less than three hundred gross tons, to leave or attempt to leave any harbor or port of the United States for a voyage in the open sea, unless such ship is equipped with an efficient radio station in operating condition, as specified by subparagraphs (A) and (B) of this paragraph, in charge of and operated by one or more radio officers or operators, adequately installed and protected so as to insure proper operation, and so as not to endanger the ship and radio station as hereinafter provided, and, in the case of a ship of the United States, unless there is on board a valid station license issued in accordance with this Act.

(A) Passenger ships irrespective of size and cargo ships of one thousand six hundred gross tons and upward shall be equipped with a radiotelegraph station complying with the pro- visions of this part;

(B) Cargo ships of three hundred gross tons and upward but less than one thousand six hundred gross tons, unless equipped with a radiotelegraph station complying with the pro- visions of this part, shall be equipped with a radiotelephone station complying with the provisions of this part. (2) For any ship of the United States of one thousand six hun-

dred gross tons and upward to be navigated in the open sea outside of a harbor or port, or for any such ship of the United States or any foreign country to leave or attempt to leave any harbor or port of the United States for a voyage in the open sea, unless such ship is equipped with efficient radio direction finding apparatus ap- proved by the Commission, properly adjusted in operating condition as hereinafter provided.

(b) A ship which is not subject to the provisions of this part at the time of its departure on a voyage shall not become subject to such provisions on account of any deviation from its intended voyage due to stress of weather or any other cause over which nei- ther the master, the owner, nor the charterer (if any) has control. SEC. 352. ø47 U.S.C. 352¿ EXCEPTIONS.

(a) The provisions of this part shall not apply to— (1) A ship of war; (2) A ship of the United States belonging to and operated by

the Government, except a ship of the Maritime Administration of the Department of Transportation, the Inland and Coastwise Waterways Service, or the Panama Canal Company;

(3) A foreign ship belonging to a country which is a party to any Safety Convention in force between the United States and that country which ship carries a valid certificate exempting said ship from the radio provisions of that Convention, or which ship conforms to the radio requirements of such Convention or Regula- tions and has on board a valid certificate to that effect, or which ship is not subject to the radio provisions of any such Convention;

(4) Yachts of less than six hundred gross tons not subject to the radio provisions of the Safety Convention;

(5) Vessels in tow;

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250Sec. 353 COMMUNICATIONS ACT OF 1934

(6) A ship navigating solely on any bays, sounds, rivers, or pro- tected waters within the jurisdiction of the United States, or to a ship leaving or attempting to leave any harbor or port of the United States for a voyage solely on any bays, sounds, rivers, or protected waters within the jurisdiction of the United States;

(7) A ship navigating solely on the Great Lakes of North Amer- ica and the River Saint Lawrence as far east as a straight line drawn from Cap des Rosiers to West Point, Anticosti Island, and, on the north side of Anticosti Island, the sixty-third meridian, or to a ship leaving or attempting to leave any harbor or port of the United States for a voyage solely on such waters and within such area;

(8) A ship which is navigated during the course of a voyage both on the Great Lakes of North America and in the open sea, during the period while such ship is being navigated within the Great Lakes of North America and their connecting and tributary waters as far east as the lower exit of the Saint Lambert lock at Montreal in the Province of Quebec, Canada.

(b) Except for nuclear ships, the Commission may, if it con- siders that the route or the conditions of the voyage or other cir- cumstances are such as to render a radio station unreasonable or unnecessary for the purposes of this part, exempt from the provi- sions of this part any ship or class of ships which falls within any of the following descriptions:

(1) Passenger ships which in the course of their voyage do not go more than twenty nautical miles from the nearest land or, alter- natively, do not go more than two hundred nautical miles between two consecutive ports;

(2) Cargo ships which in the course of their voyage do not go more than one hundred and fifty nautical miles from the nearest land;

(3) Passenger vessels of less than one hundred gross tons not subject to the radio provisions of the Safety Convention;

(4) Sailing ships. (c) If, because of unforeseeable failure of equipment, a ship is

unable to comply with the equipment requirements of this part without undue delay of the ship, the mileage limitations set forth in paragraphs (1) and (2) of subsection (b) shall not apply: Pro- vided, That exemption of the ship is found to be reasonable or nec- essary in accordance with subsection (b) to permit the ship to pro- ceed to a port where the equipment deficiency may be remedied.

(d) Except for nuclear ships, and except for ships of five thou- sand gross tons and upward which are subject to the Safety Con- vention, the Commission may exempt from the requirements, for radio direction finding apparatus, of this part and of the Safety Convention, any ship which falls within the descriptions set forth in paragraphs (1), (2), (3), and (4) of subsection (b) of this section, if it considers that the route on conditions of the voyage or other circumstances are such as to render such apparatus unreasonable or unnecessary. SEC. 353. ø47 U.S.C. 353¿ RADIO OFFICERS, WATCHES, AUTO ALARM-RA-

DIOTELEGRAPH EQUIPPED SHIPS. (a) Each cargo ship which in accordance with this part is

equipped with a radiotelegraph station and which is not equipped

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251 Sec. 355COMMUNICATIONS ACT OF 1934

with a radiotelegraph auto alarm, and each passenger ship re- quired by this part to be equipped with a radiotelegraph station, shall, for safety purposes, carry at least two radio officers.

(b) A cargo ship which in accordance with this part is equipped with a radiotelegraph station, which is equipped with a radio- telegraph auto alarm, shall, for safety purposes, carry at least one radio officer who shall have had at least six months’ previous serv- ice in the aggregate as a radio officer in a station on board a ship or ships of the United States.

(c) Each ship of the United States which in accordance with this part is equipped with a radiotelegraph station shall, while being navigated in the open sea outside of a harbor or port, keep a continuous watch by means of radio officers whenever the station is not being used for authorized traffic: Provided, That, in lieu thereof, on a cargo ship equipped with a radiotelegraph auto alarm in proper operating condition, a watch of at least eight hours per day, in the aggregate, shall be maintained by means of a radio offi- cer.

(d) The Commission shall, when it finds it necessary for safety purposes, have authority to prescribe the particular hours of watch on a ship of the United States which in accordance with this part is equipped with a radiotelegraph station.

(e) On all ships of United States equipped with a radio- telegraph auto alarm, said apparatus shall be in operation at all times while the ship is being navigated in the open sea outside of a harbor or port when the radio officer is not on watch. SEC. 354. ø47 U.S.C. 353a¿ OPERATORS, WATCHES—RADIOTELEPHONE

EQUIPPED SHIPS. (a) Each cargo ship which in accordance with this part is

equipped with a radiotelephone station shall, for safety purposes, carry at least one operator who may be the master, an officer, or a member of the crew.

(b) Each cargo ship of the United States which in accordance with this part is equipped with a radiotelephone station shall, while being navigated in the open sea outside of a harbor or port, maintain continuous watch whenever the station is not being used for authorized traffic. SEC. 355. ø47 U.S.C. 354¿ TECHNICAL REQUIREMENTS—RADIO-

TELEGRAPH EQUIPPED SHIPS. The radiotelegraph station and the radio direction finding ap-

paratus required by section 351 of this part shall comply with the following requirements:

(a) The radiotelegraph station shall include a main installation and a reserve installation, electrically separate and electrically independent of each other: Provided, That, in installations on cargo ships of three hundred gross tons and upward but less than one thousand six hundred gross tons, and in installations on cargo ships of one thousand six hundred gross tons and upward installed prior to November 19, 1952, if the main transmitter complies with all the requirements for the reserve transmitter, the latter may be omitted.

(b) The radiotelegraph station shall be so located that no harm- ful interference from extraneous mechanical or other noise will be

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252Sec. 355 COMMUNICATIONS ACT OF 1934

caused to the proper reception of radio signals, and shall be placed in the upper part of the ship in a position of the greatest possible safety and as high as practicable above the deepest load waterline. The location of the radiotelegraph operating room or rooms shall be approved by the Commandant of the Coast Guard. The radio- telegraph installation shall be installed in such a position that it will be protected against the harmful effects of water or extremes of temperature, and shall be readily accessible both for immediate use in case of distress and for repair.

(c) The radiotelegraph operating room shall be of sufficient size and of adequate ventilation to enable the main and reserve radio- telegraph installations to be operated efficiently, and shall not be used for any purpose which will interfere with the operation of the radiotelegraph station. The sleeping accommodation of at least one radio officer shall be situated as near as practicable to the radio- telegraph operating room. In ships the keels of which are laid on or after May 26, 1965, this sleeping accommodation shall not be within the radiotelegraph operating room.

(d) The main and reserve installations shall be capable of transmitting and receiving on the frequencies, and using the class- es of emission, designated by the Commission pursuant to law for the purposes of distress and safety of navigation.

(e) The main and reserve installations shall, when connected to the main antenna, have a minimum normal range of two hun- dred nautical miles and one hundred nautical miles, respectively; that is, they must be capable of transmitting and receiving clearly perceptible signals from ship to ship by day and under normal con- ditions and circumstances over the specified ranges.

(f) Sufficient electrical energy shall be available at all times to operate the main installation over the normal range required by subsection (e) of this section as well as for the purpose of charging any batteries forming part of the radiotelegraph station.

(g) The reserve installation shall include a source of electrical energy independent of the propelling power of the ship and of any other electrical system and shall be capable of being put into oper- ation rapidly and of working for at least six continuous hours. The reserve source of energy and its switchboard shall be as high as practicable in the ship and readily accessible to the radio officer.

(h) There shall be provided between the bridge of the ship and the radiotelegraph operating room, and between the bridge and the location of the radio direction finding apparatus, when such appa- ratus is not located on the bridge, an efficient two-way system for calling and voice communication which shall be independent of any other communication system in the ship.

(i) The radio direction finding apparatus shall be efficient and capable of receiving signals with the minimum of receiver noise and of taking bearings from which the true bearing and direction may be determined. It shall be capable of receiving signals on the radio-telegraph frequencies assigned by the radio regulations an- nexed to the International Telecommunication Convention in force for the purpose of distress, direction finding, and maritime radio beacons, and, in installations made after May 26, 1965, such other frequencies as the Commission may for safety purposes designate.

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253 Sec. 358COMMUNICATIONS ACT OF 1934

SEC. 356. ø47 U.S.C. 354a¿ TECHNICAL REQUIREMENTS—RADIO- TELEPHONE EQUIPPED SHIPS.

Cargo ships of three hundred gross tons and upward but less than one thousand six hundred gross tons may, in lieu of the radio- telegraph station prescribed by section 355, be equipped with a ra- diotelegraph station complying with the following requirements:

(a) The radiotelephone station shall be in the upper part of the ship, so located that it is sheltered to the greatest possible extent from noise which might impair the correct receiption of messages and signals, and, unless such station is situated on the bridge, there shall be efficient communication with the bridge.

(b) The radiotelephone installation shall be capable of trans- mitting and receiving on the frequencies, and using the classes of emission, designated by the Commission pursuant to law for pur- poses of distress and safety of navigation.

(c) The radiotelephone installation shall have a minimum nor- mal range of one hundred and fifty nautical miles; that is, it shall be capable of transmitting and receiving clearly perceptible signals from ship to ship by day and under normal conditions and cir- cumstances over this range.

(d) There shall be available at all times a main source of elec- trical energy sufficient to operate the installation over the normal range required by subsection (c) of this section. If batteries are pro- vided they shall have sufficient capacity to operate the transmitter and receiver for at least six continuous hours under normal work- ing conditions. In installations made on or after November 19, 1952, a reserve source of electrical energy shall be provided in the upper part of the ship unless the main source of energy is so situ- ated. SEC. 357. ø47 U.S.C. 355¿ SURVIVAL CRAFT.

Every ship required to be provided with survival craft radio by treaty to which the United States is a party, by statute, or by regu- lation made in conformity with a treaty, convention, or statute, shall be fitted with efficient radio equipment appropriate to such requirement under such rules and regulations as the Commission may find necessary for safety of life. For purposes of this section, ‘‘radio equipment’’ shall include portable as well as nonportable ap- paratus. SEC. 358. ø47 U.S.C. 356¿ APPROVAL OF INSTALLATIONS.

Insofar as is necessary to carry out the purposes and require- ments of this part, the Commission shall have authority, for any ship subject to this part—

(1) To approve the details as to the location and manner of installations of the equipment required by this part of equip- ment necessitated by reason of the purposes and requirements of this part.

(2) To approve installations, apparatus, and spare parts necessary to comply with the purposes and requirements of this part.

(3) To prescribe such additional equipment as may be de- termined to be necessary to supplement that specified herein, for the proper functioning of the radio installation installed in

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254Sec. 358 COMMUNICATIONS ACT OF 1934

accordance with this part or for the proper conduct of radio communication in time of emergency or distress.

SEC. 359. ø47 U.S.C. 357¿ TRANSMISSION OF INFORMATION. (a) The master of every ship of the United States, equipped

with radio transmitting apparatus, which meets with dangerous ice, a dangerous derelict, a tropical storm, or any other direct dan- ger to navigation, or encounters subfreezing air temperatures asso- ciated with gale force winds causing severe ice accretion on super- structures, or winds of force 10 or above on the Beaufort scale for which no storm warning has been received, shall cause to be trans- mitted all pertinent information relating thereto to ships in the vi- cinity and to the appropriate authorities on land, in accordance with rules and regulations issued by the Commission. When they consider it necessary, such authorities of the United States shall promptly bring the information received by them to the knowledge of those concerned, including interested foreign authorities.

(b) No charge shall be made by any ship or station in the mo- bile service of the United States for the transmission, receipt, or relay of the information designated in subsection (a) originating on a ship of the United States or of a foreign country.

(c) The transmission by any ship of the United States, made in compliance with subsection (a), to any station which imposes a charge for the reception, relay, or forwarding of the required infor- mation, shall be free of cost to the ship concerned and any commu- nication charges incurred by the ship for transmission, relay, or forwarding of the information may be certified to the Commission for reimbursement out of moneys appropriated to the Commission for that purpose.

(d) No charge shall be made by any ship or station in the mo- bile service of the United States for the transmission of distress messages and replies thereto in connection with situations involv- ing the safety of life and property at sea.

(e) Notwithstanding any other provision of law, any station or carrier may render free service in connection with situations in- volving the safety of life and property, including hydrographic re- ports, weather reports, reports regarding aids to navigation and medical assistance to injured or sick persons on ships and aircraft at sea. All free service permitted by this subsection shall be subject to such rules and regulations as the Commission may prescribe, which rules may limit such free service to the extent which the Commission finds desirable in the public interest. SEC. 360. ø47 U.S.C. 358¿ AUTHORITY OF MASTER.

The radio installation, the operators, the regulation of their watches, the transmission and receipt of messages, and the radio service of the ship except as they may be regulated by law or inter- national agreement, or by rules and regulations made in pursuance thereof, shall in the case of a ship of the United States be under the supreme control of the master. SEC. 361. ø47 U.S.C. 359¿ CERTIFICATES.

(a) Each vessel of the United States to which the Safety Con- vention applies shall comply with the radio and communication provisions of said Convention at all times while the vessel is in use, in addition to all other requirements of law, and shall have on

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255 Sec. 362COMMUNICATIONS ACT OF 1934

board an appropriate certificate as prescribed by the Safety Con- vention.

(b) Appropriate certificates concerning the radio particulars provided for in said Convention shall be issued upon proper request to any vessel which is subject to the radio provisions of the Safety Convention and is found by the Commission to comply therewith. Cargo ship safety radio telegraphy certificates, cargo ship safety radiotelephony certificates, and exemption certificates with respect to radio particulars shall be issued by the Commission. Other cer- tificates concerning the radio particulars provided for in the said Convention shall be issued by the Commandant of the Coast Guard or whatever other agency is authorized by law to do so upon re- quest of the Commission made after proper inspection or deter- mination of the facts. If the holder of a certificate violates the radio provisions of the Safety Convention or the provisions of this Act, or the rules, regulations, or conditions prescribed by the Commis- sion, and if the effective administration of the Safety Convention or of this part so requires, the Commission, after hearing in accord- ance with law, is authorized to modify or cancel a certificate which it has issued, or to request the modification or cancellation of a cer- tificate which has been issued by another agency upon the Com- mission’s request. Upon receipt of such request for modification or cancellation, the Commandant of the Coast Guard, or whatever agency is authorized by law to do so, shall modify or cancel the cer- tificate in accordance therewith. SEC. 362. ø47 U.S.C. 360¿ INSPECTION.

(a) In addition to any other provisions required to be included in a radio station license, the station license of each ship of the United States subject to this title shall include particulars with ref- erence to the items specifically required by this title.

(b) Every ship of the United States that is subject to this part shall have the equipment and apparatus prescribed therein in- spected at least once each year by the Commission or an entity des- ignated by the Commission. If, after such inspection, the Commis- sion is satisfied that all relevant provisions of this Act and the sta- tion license have been complied with, the fact shall be so certified on the station license by the Commission. The Commission shall make such additional inspections at frequent intervals as the Com- mission determines may be necessary to ensure compliance with the requirements of this Act. The Commission may, upon a finding that the public interest could be served thereby—

(1) waive the annual inspection required under this section for a period of up to 90 days for the sole purpose of enabling a vessel to complete its voyage and proceed to a port in the United States where an inspection can be held; or

(2) waive the annual inspection required under this section for a vessel that is in compliance with the radio provisions of the Safety Convention and that is operating solely in waters beyond the jurisdiction of the United States: Provided, That such inspection shall be performed within 30 days of such ves- sel’s return to the United States.

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256Sec. 363 COMMUNICATIONS ACT OF 1934

SEC. 363. ø47 U.S.C. 361¿ CONTROL BY COMMISSION. Nothing in this title shall be interpreted as lessening in any

degree the control of the Commission over all matters connected with the radio equipment and its operation on shipboard and its decision and determination in regard to the radio requirements, in- stallations, or exemptions from prescribed radio requirements shall be final, subject only to review in accordance with law. SEC. 364. ø47 U.S.C. 362¿ FORFEITURES.

The following forfeitures shall apply to this part, in addition to the penalties and forfeitures provided by title V of this Act:

(a) Any ship that leaves or attempts to leave any harbor or port of the United States in violation of the provisions of this part, or the rules and regulations of the Commission made in pursuance thereof, or any ship of the United States that is navigated outside of any harbor or port in violation of any of the provisions of this part, or the rules and regulations of the Commission made in pur- suance thereof, shall forfeit to the United States the sum of $5,000, recoverable by way of suit or libel. Each such departure or at- tempted departure, and in the case of a ship of the United States each day during which such navigation occurs shall constitute a separate offense.

(b) Every willful failure on the part of the master of a ship of the United States to enforce or to comply with the provisions of this Act or the rules and regulations of the Commission as to equipment, operators, watches, or radio service shall cause him to forfeit to the United States the sum of $1,000. SEC. 365. ø47 U.S.C. 363¿ AUTOMATED SHIP DISTRESS AND SAFETY SYS-

TEMS. Notwithstanding any provision of this Act or any other provi-

sion of law or regulation, a ship documented under the laws of the United States operating in accordance with the Global Maritime Distress and Safety System provisions of the Safety of Life at Sea Convention shall not be required to be equipped with a radio teleg- raphy station operated by one or more radio officers or operators. This section shall take effect for each vessel upon a determination by the United States Coast Guard that such vessel has the equip- ment required to implement the Global Maritime Distress and Safety System installed and operating in good working condition.

PART III—RADIO INSTALLATIONS ON VESSELS CARRYING PASSENGERS FOR HIRE

SEC. 381. ø47 U.S.C. 381¿ VESSELS TRANSPORTING MORE THAN SIX PASSENGERS FOR HIRE REQUIRED TO BE EQUIPPED WITH RADIO TELEPHONE.

Except as provided in section 382, it shall be unlawful for any vessel of the United States, transporting more than six passengers for hire, to be navigated in the open sea or any tidewater within the jurisdiction of the United States adjacent or contiguous to the open sea, unless such vessel is equipped with an efficient radio- telephone installation in operating condition.

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257 Sec. 386COMMUNICATIONS ACT OF 1934

1 So in law. 2 So in law. Probably should be followed by ‘‘and’’.

SEC. 382. ø47 U.S.C. 382¿ VESSELS EXCEPTED FROM RADIO TELEPHONE REQUIREMENT.

The provisions of this part shall not apply to— (1) vessels which are equipped with a radio installation in

accordance with the provisions of part II of title III of this Act, or in accordance with the radio requirements of the Safety Convention; and 1

(2) vessels of the United States belonging to and operated by the Government, and 1

(3) vessels navigating on the Great Lakes. SEC. 383. ø47 U.S.C. 383¿ EXEMPTIONS BY COMMISSION.

The Commission shall exempt from the provisions of this part any vessel, or class of vessels, in the case of which the route or con- ditions of the voyage, or other conditions or circumstances, are such as to render a radio installation unreasonable, unnecessary, or inef- fective, for the purposes of this Act. SEC. 384. ø47 U.S.C. 384¿ AUTHORITY OF COMMISSION; OPERATIONS,

INSTALLATIONS, AND ADDITIONAL EQUIPMENT. The Commission shall have authority with respect to any ves-

sel subject to this part— (1) to specify operating and technical conditions and char-

acteristics including frequencies, emissions, power, communica- tion capability and range, of installations required by reason of this part;

(2) to approve the details as to the location and manner of installation of the equipment required by this part or of equip- ment necessitated by reason of the purposes and requirements of this part;

(3) to approve installations, apparatus and spare parts necessary to comply with the purposes and requirements of this part; 2

(4) to prescribe such additional equipment as may be de- termined to be necessary to supplement that specified herein for the proper functioning of the radio installation installed in accordance with this part or for the proper conduct of radio communication in time of emergency or distress.

SEC. 385. ø47 U.S.C. 385¿ INSPECTIONS. The Commission or an entity designated by the Commission

shall make such inspections as may be necessary to insure compli- ance with the requirements of this part. In accordance with such other provisions of law as apply to Government contracts, the Com- mission may enter into contracts with any person for the purpose of carrying out such inspections and certifying compliance with those requirements, and may, as part of any such contract, allow any such person to accept reimbursement from the license holder for travel and expense costs of any employee conducting an inspec- tion or certification. SEC. 386. ø47 U.S.C. 386¿ FORFEITURES.

The following forfeitures shall apply to this part in addition to penalties and forfeitures provided by title V of this Act:

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258Sec. 390 COMMUNICATIONS ACT OF 1934

(a) Any vessel of the United States that is navigated in viola- tion of the provisions of this part or of the rules and regulations of the Commission made in pursuance thereof shall forfeit to the United States the sum of $5,000 recoverable by way of suit or libel. Each day during which such navigation occurs shall constitte a sep- arate offense.

(b) Every willful failure on the part of the master of a vessel of the United States to enforce or to comply with the provisions of this part or the rules and regulations of the Commission made in pursuance thereof shall cause him to forfeit to the United States the sum of $1,000.

PART IV—ASSISTANCE FOR PUBLIC TELE- COMMUNICATIONS FACILITIES; TELE- COMMUNICATIONS DEMONSTRATIONS; COR- PORATION FOR PUBLIC BROADCASTING

Subpart A—Assistance for Public Telecommunications Facilities

SEC. 390. ø47 U.S.C. 390¿ DECLARATION OF PURPOSE. The purpose of this subpart is to assist, through matching

grants, in the planning and construction of public telecommuni- cations facilities in order to achieve the following objectives: (1) ex- tend delivery of public telecommunications services to as many citi- zens of the United States as possible by the most efficient and eco- nomical means, including the use of broadcast and nonbroadcast technologies; (2) increase public telecommunications services and facilities available to, operated by, and owned by minorities and women; and (3) strengthen the capability of existing public tele- vision and radio stations to provide public telecommunications services to the public. SEC. 391. ø47 U.S.C. 391¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated $42,000,000 for each of the fiscal years 1992, 1993, and 1994, to be used by the Sec- retary of Commerce to assist in the planning and construction of public telecommunications facilities as provided in this subpart. Sums appropriated under this subpart for any fiscal year shall re- main available until expended for payment of grants for projects for which applications approved by the Secretary pursuant to this subpart have been submitted within such fiscal year. Sums appro- priated under this subpart may be used by the Secretary to cover the cost of administering the provisions of this subpart. SEC. 392. ø47 U.S.C. 392¿ GRANTS FOR CONSTRUCTION AND PLANNING.

(a) For each project for the construction of public telecommuni- cations facilities there shall be submitted to the Secretary an appli- cation for a grant containing such information with respect to such project as the Secretary may require, including the total cost of such project, the amount of the grant requested for such project, and a 5-year plan outlining the applicant’s projected facilities re- quirements and the projected costs of such facilities requirements.

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Each applicant shall also provide assurances satisfactory to the Secretary that—

(1) the applicant is (A) a public broadcast station; (B) a noncommercial telecommunications entity; (C) a system of pub- lic telecommunications entities; (D) a nonprofit foundation, cor- poration, institution, or association organized primarily for educational or cultural purposes; or (E) a State or local govern- ment (or any agency thereof), or a political or special purpose subdivision of a State;

(2) the operation of such public telecommunication facili- ties will be under the control of the applicant;

(3) necessary funds to construct, operate, and maintain such public telecommunications facilities will be available when needed;

(4) such public telecommunications facilities will be used primarily for the provision of public telecommunications serv- ices and that the use of such public telecommunications facili- ties for purposes other than the provision of public tele- communications services will not interfere with the provision of such public telecommunications services as required in this part;

(5) the applicant has participated in comprehensive plan- ning for such public telecommunications facilities in the area which the applicant proposes to serve, and such planning has included an evaluation of alternate technologies and coordina- tion with State educational television and radio agencies, as appropriate; and

(6) the applicant will make the most efficient use of the grant. (b) Upon approving any application under this section with re-

spect to any project for the construction of public telecommuni- cations facilities, the Secretary shall make a grant to the applicant in an amount determined by the Secretary, except that such amounts shall not exceed 75 percent of the amount determined by the Secretary to be the reasonable and necessary cost of such project.

(c) The Secretary may provide such funds as the Secretary deems necessary for the planning of any project for which construc- tion funds may be obtained under this section. An applicant for a planning grant shall provide such information with respect to such project as the Secretary may require and shall provide assurances satisfactory to the Secretary that the applicant meets the eligible requirements of subsection (a) to receive construction assistance.

(d) Any studies conducted by or for any grant recipient under this section shall be provided to the Secretary, if such studies are conducted through the use of funds received under this section.

(e) The Secretary shall establish such rules and regulations as may be necessary to carry out this subpart, including rules and regulations relating to the order of priority in approving applica- tions for construction projects and relating to determining the amount of each grant for such projects.

(f) In establishing criteria for grants pursuant to section 393 and in establishing procedures relating to the order of priority es- tablished in subsection (e) in approving applications for grants, the

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Secretary shall give special consideration to applications which would increase minority and women’s ownership of, operation of, and participation in public telecommunications entities. The Sec- retary shall take affirmative steps to inform minorities and women of the availability of funds under this subpart, and the localities where new public telecommunications facilities are needed, and to provide such other assistance and information as may be appro- priate.

(g) If, within 10 years after completion of any project for construcion of public telecommunications facilities with respect to which a grant has been made under this section—

(1) the applicant or other owner of such facilities ceases to be an agency, institution, foundation, corporation, association, or other entity described in subsection (a)(1); or

(2) such facilities cease to be used primarily for the provi- sion of public telecommunications services (or the use of such public telecommunications facilities for purposes other than the provision of public telecommunications services interferes with the provision of such public telecommunications services as required in this part);

the United States shall be entitled to recover from the applicant or other owner of such facilities the amount bearing the same ratio to the value of such facilities at the time the applicant ceases to be such an entity or at the time of such determination (as deter- mined by agreement of the parties or by action brought in the United States district court for the district in which such facilities are situated), as the amount of the Federal participation bore to the cost of construction of such facilities.

(h) Each recipient of assistance under this subpart shall keep such records as may be reasonably necessary to enable the Sec- retary to carry out the functions of the Secretary under this sub- part, including a complete and itemized inventory of all public tele- communications facilities under the control of such recipient, and records which fully disclose the amount and the disposition by such recipient of the proceeds of such assistance, the total cost of the project in connection with which such assistance is given or used, the amount and nature of that portion of the cost of the project supplied by other sources, and such other records as will facilitate an effective audit.

(i) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access for the purpose of audit and examination to any books, docu- ments, papers, and records of any recipient of assistance under this subpart that are pertinent to assistance received under this sub- part. SEC. 393. ø47 U.S.C. 393¿ CRITERIA FOR APPROVAL AND EXPENDI-

TURES BY SECRETARY OF COMMERCE. (a) The Secretary, in consultation with the Corporation, public

telecommunications entities, and as appropriate with others, shall estblish criteria for making construction and planning grants. Such criteria shall be consistent with the objectives and provisions set forth in this subpart, and shall be made available to interested par- ties upon request.

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1 Section 1021(a) of Public Law 104–66 (109 Stat. 712) repealed subsection (b), but did not amend subsection (a).

(b) The Secretary shall base determinations of whether to ap- prove applications for grants under this subpart, and the amount of such grants, on criteria developed pursuant to subsection (a) and designed to achieve—

(1) the provision of new telecommunications facilities to ex- tend service to areas currently not receiving public tele- communications services;

(2) the expansion of the service areas of existing public telecommunications entities;

(3) the development of public telecommunications facilities owned by, operated by, and available to minorities and women; and

(4) the improvement of the capabilities of existing public broadcast stations to provide public telecommunications serv- ices, including services to underserved audiences such as deaf and hearing impaired individuals and blind and visually im- paired individuals. (c) Of the sums appropriated pursuant to section 391 for any

fiscal year, a substantial amount shall be available for the expan- sion and development of noncommercial radio broadcast station fa- cilities. SEC. 393A. ø47 U.S.C. 393a¿ LONG-RANGE PLANNING FOR FACILITIES.

(a) 1 The Secretary, in consultation with the Corporation, pub- lic telecommunications entities, and as appropriate with other par- ties, shall develop a long-range plan to accomplish the objectives set forth in section 390. Such plan shall include a detailed 5-year projection of the broadcast and nonbroadcast public telecommuni- cations facilities required to meet such objectives, and the expendi- tures necessary to provide such facilities.

Subpart B—National Endowment for Children’s Educational Television

SEC. 394. ø47 U.S.C. 394¿ ESTABLISHMENT OF NATIONAL ENDOWMENT. (a) It is the purpose of this section to enhance the education

of children through the creation and production of television pro- gramming specifically directed toward the development of funda- mental intellectual skills.

(b)(1) There is established, under the direction of the Sec- retary, a National Endowment for Children’s Educational Tele- vision. In administering the National Endowment, the Secretary is authorized to—

(A) contract with the Corporation for the production of educational television programming for children; and

(B) make grants directly to persons proposing to create and produce educational television programming for children.

The Secretary shall consult with the Advisory Council on Chil- dren’s Educational Television in the making of the grants or the awarding of contracts for the purpose of making the grants.

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(2) Contracts and grants under this section shall be made on the condition that the programming shall—

(A) during the first two years after its production, be made available only to public television licensees and permittees and noncommercial television licensees and permittees; and

(B) thereafter be made available to any commercial tele- vision licensee or permittee or cable television system operator, at a charge established by the Secretary that will assure the maximum practicable distribution of such programming, so long as such licensee, permittee, or operator does not interrupt the programming with commercial advertisements.

The Secretary may, consistent with the purpose and provisions of this section, permit the programming to be distributed to persons using other media, establish conditions relating to such distribu- tion, and apply those conditions to any contract or grant made under this section. The Secretary may waive the requirements of subparagraph (A) if the Secretary finds that neither public tele- vision licensees and permittees nor noncommercial television li- censees and permittees will have an opportunity to air such pro- gramming in the first two years after its production.

(c)(1) The Secretary, with the advice of the Advisory Council on Children’s Educational Television, shall establish criteria for mak- ing contracts and grants under this section. Such criteria shall be consistent with the purpose and provisions of this section and shall be made available to interested parties upon request. Such criteria shall include—

(A) criteria to maximize the amount of programming that is produced with the funds made available by the Endowment;

(B) criteria to minimize the costs of— (i) selection of grantees, (ii) administering the contracts and grants, and (iii) the administrative costs of the programming pro-

duction; and (C) criteria to otherwise maximize the proportion of funds

made available by the Endowment that are expended for the cost of programming production. (2) Applications for grants under this section shall be sub-

mitted to the Secretary in such form and containing such informa- tion as the Secretary shall require by regulation.

(d) Upon approving any application for a grant under sub- section (b)(1)(B), the Secretary shall make a grant to the applicant in an amount determined by the Secretary, except that such amounts shall not exceed 75 percent of the amount determined by the Secretary to be the reasonable and necessary cost of the project for which the grant is made.

(e)(1) The Secretary shall establish an Advisory Council on Children’s Educational Television. The Secretary shall appoint ten individuals as members of the Council and designate one of such members to serve as Chairman.

(2) Members of the Council shall have terms of two years, and no member shall serve for more than three consecutive terms. The members shall have expertise in the fields of education, psychology, child development, or television programming, or related dis-

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ciplines. Officers and employees of the United States shall not be appointed as members.

(3) While away from their homes or regular places of business in the performance of duties for the Council, the members of the Council shall serve without compensation but shall be allowed travel expenses, including per diem in lieu of subsistence, in ac- cordance with section 5703 of title 5, United States Code.

(4) The Council shall meet at the call of the Chairman and shall advise the Secretary concerning the making of contracts and grants under this section.

(f)(1) Each recipient of a grant under this section shall keep such records as may be reasonably necessary to enable the Sec- retary to carry out the Secretary’s functions under this section, in- cluding records which fully disclose the amount and the disposition by such recipient of the proceeds of such grant, the total cost of the project, the amount and nature of that portion of the cost of the project supplied by other sources, and such other records as will fa- cilitate an effective audit.

(2) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access for the purposes of audit and examination to any books, doc- uments, papers, and records of the recipient that are pertinent to a grant received under this section.

(g) The Secretary is authorized to make such rules and regula- tions as may be necessary to carry out this section, including those relating to the order of priority in approving applications for projects under this section or to determining the amounts of con- tracts and grants for such projects.

(h) There are authorized to be appropriated $2,000,000 for fis- cal year 1991, $4,000,000 for fiscal year 1992, $5,000,000 for fiscal year 1993, and $6,000,000 for fiscal year 1994 to be used by the Secretary to carry out the provisions of this section. Sums appro- priated under this subsection for any fiscal year shall remain avail- able for contracts and grants for projects for which applications ap- proved under this section have been submitted wtihin one year after the last day of such fiscal year.

(i) For purposes of this section— (1) the term ‘‘educational television programming for chil-

dren’’ means any television program which is directed to an au- dience of children who are 16 years of age or younger and which is designed for the intellectual development of those children, except that such term does not include any television program which is directed to a general audience but which might also be viewed by a significant number of children; and

(2) the term ‘‘person’’ means an individual, partnership, as- sociation, joint stock company, trust, corporation, or State or local governmental entity.

Subpart C—Telecommunications Demonstrations

SEC. 395. ø47 U.S.C. 395¿ ASSISTANCE FOR DEMONSTRATION PROJECTS.

(a) It is the purpose of this subpart to promote the develop- ment of nonbroadcast telecommunications facilities and services for

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the transmission, distribution, and delivery of health, education, and public or social service information. The Secretary is author- ized, upon receipt of an application in such form and containing such information as he may by regulation require, to make grants to, and enter into contracts with, public and private nonprofit agen- cies, organizations, and institutions for the purpose of carrying out telecommunications demonstrations.

(b) The Secretary may approve an application submitted under subsection (a) if he determines that—

(1) the project for which application is made will dem- onstrate innovative methods or techniques of utilizing non- broadcast telecommunications equipment or facilities to satisfy the purpose of this subpart;

(2) demonstrations and related activities assisted under this subpart will remain under the administration and control of the applicant;

(3) the applicant has the managerial and technical capa- bility to carry out the project for which the application is made; and

(4) the facilities and equipment acquired or developed pur- suant to the application will be used substantially for the transmission, distribution, and delivery of health, education, or public or social service information. (c) Upon approving any application under this subpart with re-

spect to any project, the Secretary shall make a grant to or enter into a contract with the applicant in an amount determined by the Secretary not to exceed the reasonable and necessary cost of such project. The Secretary shall pay such amount from the sums avail- able therefor, in advance or by way of reimbursement, and in such installments consistent with established practice, as he may deter- mine.

(d) Funds made available pursuant to this subpart shall not be available for the construction, remodeling, or repair of structures to house the facilities or equipment acquired or developed with such funds, except that such funds may be used for minor remodeling which is necessary for and incidental to the installation of such fa- cilities or equipment.

(e) For purposes of this section, the term ‘‘nonbroadcast tele- communications facilities’’ includes, but is not limited to, cable tele- vision systems, communications satellite systems and related ter- minal equipment, and other modes of transmitting, emitting, or re- ceiving images and sounds or intelligence by means of wire, radio, optical, electromagnetic or other means.

(f) The funding of any demonstration pursuant to this subpart shall continue for not more than 3 years from the date of the origi- nal grant or contract.

(g) The Secretary shall require that the recipient of a grant or contract under this subpart submit a summary and evaluation of the results of the demonstration at least annually for each year in which funds are received pursuant to this section.

(h)(1) Each recipient of assistance under this subpart shall keep such records as may be reasonably necessary to enable the Secretary to carry out the Secretary’s functions under this subpart, including records which fully disclose the amount and the disposi-

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tion by such recipient of the proceeds of such assistance, the total cost of the project or undertaking in connection with which such as- sistance is given or used, the amount and nature of that portion of the cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit.

(i) The Secretary is authorized to make such rules and regula- tions as may be necessary to carry out this subpart, including regu- lations relating to the order of priority in approving applications for projects under this subpart or to determining the amounts of grants for such projects.

(j) The Commission is authorized to provide such assistance in carrying out the provisions of this subpart as may be requested by the Secretary. The Secretary shall provide for close coordination with the Commission in the administration of the Secretary’s func- tions under this subpart which are of interest to or affect the func- tions of the Commission. The Secretary shall provide for close co- ordination with the Corporation in the administration of the Sec- retary’s functions udner this subpart which are of interest to or af- fect the functions of the Corporation.

(k) There are authorized to be appropriated $1,000,000 for each of the fiscal years 1979, 1980, and 1981, to be used by the Sec- retary to carry out the provisions of this subpart. Sums appro- priated under this subsection for any fiscal year shall remain avail- able for payment of grants or contracts for projects for which appli- cations approved under this subpart have been submitted within one year after the last day of such fiscal year.

Subpart D—Corporation for Public Broadcasting

SEC. 396. ø47 U.S.C. 396¿ DECLARATION OF POLICY. (a) The Congress hereby finds and declares that—

(1) it is in the public interest to encourage the growth and development of public radio and television broadcasting, in- cluding the use of such media for instructional, educational, and cultural purposes;

(2) it is in the public interest to encourage the growth and development of nonbroadcast telecommunications technologies for the delivery of public telecommunications services;

(3) expansion and development of public telecommuni- cations and of diversity of its programming depend on freedom, imagination, and initiative on both local and national levels;

(4) the encouragement and support of public telecommuni- cations, while matters of importance for private and local development, are also of appropriate and important concern to the Federal Government;

(5) it furthers the general welfare to encourage public tele- communications services which will be responsive to the inter- ests of people both in particular localities and throughout the United States, which will constitute an expression of diversity

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and excellence, and which will constitute a source of alter- native telecommunications services for all the citizens of the Nation;

(6) it is in the public interest to encourage the develop- ment of programming that involves creative risks and that ad- dresses the needs of unserved and underserved audiences, par- ticularly children and minorities;

(7) it is necessary and appropriate for the Federal Govern- ment to complement, assist, and support a national policy that will most effectively make public telecommunications services available to all citizens of the United States;

(8) public television and radio stations and public tele- communications services constitute valuable local community resources for utilizing electronic media to address national con- cerns and solve local problems through community programs and outreach programs;

(9) it is in the public interest for the Federal Government to ensure that all citizens of the United States have access to public telecommunications services through all appropriate available telecommunications distribution technologies; and

(10) a private corporation should be created to facilitate the development of public telecommunications and to afford maximum protection from extraneous interference and control.

Corporation Established

(b) There is authorized to be established a nonprofit corpora- tion, to be known as the ‘‘Corporation for Public Broadcasting’’, which will not be an agency or establishment of the United States Government. The Corporation shall be subject to the provisions of this section, and, to the extent consistent with this section, to the District of Columbia Nonprofit Corporation Act.

Board of Directors

(c)(1) The Corporation for Public Broadcasting shall have a Board of Directors (hereinafter in this section referred to as the ‘‘Board’’), consisting of 9 members appointed by the President, by and with the advice and consent of the Senate. No more than 5 members of the Board appointed by the President may be members of the same political party.

(2) The 9 members of the Board appointed by the President (A) shall be selected from among citizens of the United States (not reg- ular full-time employees of the United States) who are eminent in such fields as education, cultural and civic affairs, or the arts, in- cluding radio and television; and (B) shall be selected so as to pro- vide as nearly as practicable a broad representation of various re- gions of the Nation, various professions and occupations, and various kinds of talent and experience appropriate to the functions and responsibilities of the Corporation.

(3) Of the members of the Board appointed by the President under paragraph (1), one member shall be selected from among in- dividuals who represent the licensees and permittees of public tele- vision stations, and one member shall be selected from among indi-

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viduals who represent the licensees and permittees of public radio stations.

(4) The members of the initial Board of Directors shall serve as incorporators and shall take whatever actions are necessary to establish the Corporation under the District of Columbia Nonprofit Corporation Act.

(5) The term of office of each member of the Board appointed by the President shall be 6 years, except as provided in section 5(c) of the Public Telecommunications Act of 1992. Any member whose term has expired may serve until such member’s successor has taken office, or until the end of the calendar year in which such member’s term has expired, whichever is earlier. Any member ap- pointed to fill a vacancy occurring prior to the expiration of the term for which such member’s predecessor was appointed shall be appointed for the remainder of such term. No member of the Board shall be eligible to serve in excess of 2 consecutive full terms.

(6) Any vacancy in the Board shall not affect its power, but shall be filled in the manner consistent with this Act.

(7) Members of the Board shall attend not less than 50 percent of all duly convened meetings of the Board in any calendar year. A member who fails to meet the requirement of the preceding sen- tence shall forfeit membership and the President shall appoint a new member to fill such vacancy not later then 30 days after such vacancy is determined by the Chairman of the Board.

Election of Chairman and Vice Chairman; Compensation

(d)(1) Members of the Board shall annually elect one of their members to be Chairman and elect one or more of their members as a Vice Chairman or Vice Chairmen.

(2) The members of the Board shall not, by reason of such membership, be deemed to be officers or employees of the United States. They shall, while attending meetings of the Board or while engaged in duties related to such meetings or other activities of the Board pursuant to this subpart, be entitled to receive compensation at the rate of $150 per day, including traveltime. No Board mem- ber shall receive compensation of more than $10,000 in any fiscal year. While away from their homes or regular places of business, Board members shall be allowed travel and actual, reasonable, and necessary expenses.

Officers and Employees

(e)(1) The Corporation shall have a President, and such other officers as may be named and appointed by the Board for terms and at rates of compensation fixed by the Board. No officer or em- ployee of the Corporation may be compensated by the Corporation at an annual rate of pay which exceeds the rate of basic pay in ef- fect from time to time for level I of the Executive Schedule under section 5312 of title 5, United States Code. No individual other than a citizen of the United States may be an officer of the Cor- poration. No officer of the Corporation, other than the Chairman or a Vice Chairman, may receive any salary or other compensation (except for compensation for services on boards of directors of other organizations that do not receive funds from the Corporation, on

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committees of such boards, and in similar activities for such organi- zations) from any sources other than the Corporation for services rendered during the period of his or her employment by the Cor- poration. Service by any officer on boards of directors of other orga- nizations, on committees of such boards, and in similar activities for such organizations shall be subject to annual advance approval by the Board and subject to the provisions of the Corporation’s Statement of Ethical Conduct. All officers shall serve at the pleas- ure of the Board.

(2) Except as provided in the second sentence of subsection (c)(1) of this section, no political test or qualification shall be used in selecting, appointing, promoting, or taking other personnel ac- tions with respect to officers, agents, and employees of the Corpora- tion.

Nonprofit and Nonpolitical Nature of the Corporation

(f)(1) The Corporation shall have no power to issue any shares of stock, or to declare or pay any dividends.

(2) No part of the income or assets of the Corporation shall inure to the benefit of any director, officer, employee, or any other individual except as salary or reasonable compensation for services.

(3) The Corporation may not contribute to or otherwise support any political party or candidate for elective public office.

Purposes and Activities of Corporation

(g)(1) In order to achieve the objectives and to carry out the purposes of this subpart, as set out in subsection (a), the Corpora- tion is authorized to—

(A) facilitate the full development of public telecommuni- cations in which programs of high quality, diversity, creativity, excellence, and innovation, which are obtained from diverse sources, will be made available to public telecommunications entities, with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature;

(B) assist in the establishment and development of one or more interconnection systems to be used for the distribution of public telecommunications services so that all public tele- communications entities may disseminate such services at times chosen by the entities;

(C) assist in the establishment and development of one or more systems of public telecommunications entities throughout the United States; and

(D) carry out its purposes and functions and engage in its activities in ways that will most effectively assure the max- imum freedom of the public telecommunications entities and systems from interference with, or control of, program content or other activities. (2) In order to carry out the purposes set forth in subsection

(a), the Corporation is authorized to— (A) obtain grants from and make contracts with individ-

uals and with private, State, and Federal agencies, organiza- tions, and institutions;

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(B) contract with or make grants to public telecommuni- cations entities, national, regional, and other systems of public telecommunications entities, and independent producers and production entities, for the production or acquisition of public telecommunications services to be made available for use by public telecommunications entities, except that—

(i) to the extent practicable, proposals for the provision of assistance by the Corporation in the production or ac- quisition of programs or series of programs shall be evalu- ated on the basis of comparative merit by panels of outside experts, representing diverse interests and perspectives, appointed by the Corporation; and

(ii) nothing in this subparagraph shall be construed to prohibit the exercise by the Corporation of its prudent business judgement with respect to any grant to assist in the production or acquisition of any program or series of programs recommended by any such panel; (C) make payments to existing and new public tele-

communications entities to aid in financing the production or acquisition of public telecommunications services by such enti- ties, particularly innovative approaches to such services, and other costs of operation of such entities;

(D) establish and maintain, or contribute to, a library and archives of noncommercial educational and cultural radio and television programs and related materials and develop public awareness of, and disseminate information about, public tele- communications services by various means, including the pub- lication of a journal;

(E) arrange, by grant to or contract with appropriate pub- lic or private agencies, organizations, or institutions, for inter- connection facilities suitable for distribution and transmission of public telecommunications services to public telecommuni- cations entities;

(F) hire or accept the voluntary services of consultants, ex- perts, advisory boards, and panels to aid the Corporation in carrying out the purposes of this subpart;

(G) conduct (directly or through grants or contracts) re- search, demonstrations, or training in matters related to public television or radio broadcasting and the use of nonbroadcast communications technologies for the dissemination of non- commercial educational and cultural television or radio pro- grams;

(H) make grants or contracts for the use of nonbroadcast telecommunications technologies for the dissemination to the public of public telecommunications services; and

(I) take such other actions as may be necessary to accom- plish the purposes set forth in subsection (a).

Nothing contained in this paragraph shall be construed to commit the Federal Government to provide any sums for the payment of any obligation of the Corporation which exceeds amounts provided in advance in appropriation Acts.

(3) To carry out the foregoing purposes and engage in the fore- going activities, the Corporation shall have the usual powers con- ferred upon a nonprofit corporation by the District of Columbia

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Nonprofit Corporation Act (D.C. Code, sec. 29–1001 et seq.), except that the Corporation is prohibited from—

(A) owning or operating any television or radio broadcast station, system, or network, community antenna television sys- tem, interconnection system or facility, program production fa- cility, or any public telecommunications entity, system, or net- work; and

(B) producing programs, scheduling programs for dissemi- nation, or disseminating programs to the public. (4) All meetings of the Board of Directors of the Corporation,

including any committee of the Board, shall be open to the public under such terms, conditions, and exceptions as are set forth in subsection (k)(4).

(5) The Corporation, in consultation with interested parties, shall create a 5-year plan for the development of public tele- communications services. Such plan shall be updated annually by the Corporation.

Interconnection Service

(h)(1) Nothing in this Act, or in any other provision of law, shall be construed to prevent United States communications com- mon carriers from rendering free or reduced rate communications interconnection services for public television or radio services, sub- ject to such rules and regulations as the Commission may pre- scribe.

(2) Subject to such terms and conditions as may be established by public telecommunications entities receiving space satellite interconnection facilities or services purchased or arranged for, in whole or in part, with funds authorized under this part, other pub- lic telecommunications entities shall have reasonable access to such facilities or services for the distribution of educational and cultural programs to public telecommunications entities. Any remaining ca- pacity shall be made available to other persons for the trans- mission of noncommercial educational and cultural programs and program information relating to such programs, to public tele- communications entities, at a charge or charges comparable to the charge or charges, if any, imposed upon a public telecommunciations entity for the distribution of noncommercial educational and cultural programs to public telecommunications entities. No such person shall be denied such access whenever suf- ficient capacity is available.

Report to Congress

(i)(1) The Corporation shall submit an annual report for the preceding fiscal year ending September 30 to the President for transmittal to the Congress on or before the 15th day of May of each year. The report shall include—

(A) a comprehensive and detailed report of the Corpora- tion’s operations, activities, financial condition, and accom- plishments under this subpart and such recommendations as the Corporation deems appropriate;

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1 So in original. Probably should be followed by ‘‘and’’. 1 Margin so in law.

(B) a comprehensive and detailed inventory of funds dis- tributed by Federal agencies to public telecommunications enti- ties during the preceding fiscal year;

(C) a listing of each organization that receives a grant from the Corporation to produce programming, the name of the producer of any programming produced under each such grant, the title or description of any program so produced, and the amount of each such grant; 1

(D) the summary of the annual report provided to the Sec- retary pursuant to section 398(b)(4). (2) The officers and directors of the Corporation shall be avail-

able to testify before appropriate committees of the Congress with respect to such report, the report of any audit made by the Comp- troller General pursuant to subsection (1), or any other matter which such committees may determine.

Right to Repeal, Alter, or Amend

(j) The right to repeal, alter, or amend this section at any time is expressly reserved.

Financing; Open Meetings and Financial Records

(k)(1)(A) There is hereby established in the Treasury a fund which shall be known as the Public Broadcasting Fund (hereinafter in this subsection referred to as the ‘‘Fund’’), to be administered by the Secretary of the Treasury.

(B) There is authorized to be appropriated to the Fund, for each of the fiscal years 1978, 1979 and 1980, an amount equal to 40 percent of the total amount of non-Federal financial support re- ceived by public broadcasting entities during the fiscal year second preceding each such fiscal year, except that the amount so appro- priated shall not exceed $121,000,000 for fiscal year 1978, $140,000,000 for fiscal year 1979, and $160,000,000 for fiscal year 1980.

(C) There is authorized to be appropriated to the Fund, for each of the fiscal years 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1992, and 1993, an amount equal to 40 percent of the total amount of non-Federal financial support re- ceived by public broadcasting entities during the fiscal year second preceding each such fiscal year, except that the amount so appro- priated shall not exceed $265,000,000 for fiscal year 1992, $285,000,000 for fiscal year 1993, $310,000,000 for fiscal year 1994, $375,000,000 for fiscal year 1995, and $425,000,000 for fiscal year 1996.

(D) 1 In addition to any amounts authorized under any other provision of this or any other Act to be appropriated to the Fund, $20,000,000 are hereby authorized to be ap- propriated to the Fund (notwithstanding any other provi- sion of this subsection) specifically for transition from the use of analog to digital technology for the provision of pub- lic broadcasting services for fiscal year 2001.

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(E) Funds appropriated under this subsection shall remain available until expended.

(F) In recognition of the importance of educational programs and services, and the expansion of public radio services, to unserved and underserved audiences, the Corporation, after con- sultation with the system of public telecommunications entities, shall prepare and submit to the Congress an annual report for each of the fiscal years 1994, 1995, and 1996 on the Corporation’s activi- ties and expenditures relating to those programs and services.

(2)(A) The funds authorized to be appropriated by this sub- section shall be used by the Corporation, in a prudent and finan- cially responsible manner, solely for its grants, contracts, and ad- ministrative costs, except that the Corporation may not use any funds appropriated under this subpart for purposes of conducting any reception, or providing any other entertainment, for any officer or employee of the Federal Government or any State or local gov- ernment. The Corporation shall determine the amount of non-Fed- eral financial support received by public broadcasting entities dur- ing each of the fiscal years referred to in paragraph (1) for the pur- pose of determining the amount of each authorization, and shall certify such amount to the Secretary of the Treasury, except that the Corporation may include in its certification non-Federal finan- cial support received by a public broadcasting entity during its most recent fiscal year ending before September 30 of the year for which certification is made. Upon receipt of such certification, the Secretary of the Treasury shall make available to the Corporation, from such funds as may be appropriated to the Fund, the amount authorized for each of the fiscal years pursuant to the provisions of this subsection.

(B) Funds appropriated and made available under this sub- section shall be disbursed by the Secretary of the Treasury on a fis- cal year basis.

(3)(A)(i) The Corporation shall establish an annual budget for use in allocating amounts from the Fund. Of the amounts appro- priated into the Fund available for allocation for any fiscal year—

(I) $10,200,000 shall be available for the administrative ex- penses of the Corporation for fiscal year 1989, and for each succeeding fiscal year the amount which shall be available for such administrative expenses shall be the sum of the amount made available to the Corporation under this subclause for such expenses in the preceding fiscal year plus the greater of 4 percent of such amount or a percentage of such amount equal to the percentage change in the Consumer Price Index, except that none of the amounts allocated under subclauses (II), (III), and (IV) and clause (v) shall be used for any administrative ex- penses of the Corporation and not more than 5 percent of all the amounts appropriated into the Fund available for alloca- tion for any fiscal year shall be available for such administra- tive expenses;

(II) 6 percent of such amounts shall be available for ex- penses incurred by the Corporation for capital costs relating to telecommunications satellites, the payment of programming royalties and other fees, the costs of interconnection facilities and operations (as provided in clause (iv)(I)), and grants which

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the Corporation may make for assistance to stations that broadcast programs in languages other than English or for as- sistance in the provision of affordable training programs for employees at public broadcast stations, and if the available funding level permits, for projects and activities that will enhance public broadcasting;

(III) 75 percent of the remainder (after allocations are made under subclause (I) and subclause (II)) shall be allocated in accordance with clause (ii);

(IV) 25 percent of such remainder shall be allocated in ac- cordance with clause (iii). (ii) Of the amounts allocated under clause (i)(III) for any fiscal

year— (I) 75 percent of such amounts shall be available for dis-

tribution among the licensees and permittees of public tele- vision stations pursuant to paragraph (6)(B); and

(II) 25 percent of such amounts shall be available for dis- tribution under subparagraph (B)(i), and in accordance with any plan implemented under paragraph (6)(A), for national public television programming. (iii) Of the amounts allocated under clause (i)(IV) for any fiscal

year— (I) 70 percent of such amounts shall be available for dis-

tribution among the licensees and permittees of public radio stations pursuant to paragraph (6)(B);

(II) 7 percent of such amounts shall be available for dis- tribution under subparagraph (B)(i) for public radio program- ming; and

(III) 23 percent of such amounts shall be available for dis- tribution among the licensees and permittees of public radio stations pursuant to paragraph (6)(B), solely to be used for ac- quiring or producing programming that is to be distributed na- tionally and is designed to serve the needs of a national audi- ence. (iv)(I) From the amount provided pursuant to clause (i)(II), the

Corporation shall defray an amount equal to 50 percent of the total costs of interconnection facilities and operations to facilitate the availability of public television and radio programs among public broadcasts stations.

(II) Of the amounts received as the result of any contract, lease agreement, or any other arrangement under which the Corporation directly or indirectly makes available interconnection facilities, 50 percent of such amounts shall be distributed to the licensees and permittees of public television stations and public radio stations. The Corporation shall not have any authority to establish any re- quirements, guidelines, or limitations with respect to the use of such amounts by such licensees and permittees.

(v) Of the interest on the amounts appropriated into the Fund which is available for allocation for any fiscal year—

(I) 75 percent shall be available for distribution for the purposes referred to in clause (ii)(II); and

(II) 25 percent shall be available for distribution for the purposes referred to in clause (ii)(II) and (III).

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(B)(i) The Corporation shall utilize the funds allocated pursu- ant to subparagraph (A)(ii)(II) and subparagraph (A)(iii)(II) to make grants for production of public television or radio programs by independent producers and production entities and public tele- communications entities, producers of national children’s edu- cational programming, and producers of programs addressing the needs and interest of minorities, and for acquisition of such programs by public telecommunications entities. The Corporation may make grants to public telecommunications entities and pro- ducers for the production of programs in languages other than English. Of the funds utilized pursuant to this clause, a substantial amount shall be distributed to independent producers and produc- tion entities, producers of national children’s educational program- ming, and producers of programming addressing the needs and in- terests of minorities for the production of programs.

(ii) All funds available for distribution under clause (i) shall be distributed to entities outside the Corporation and shall not be used for the general administrative costs of the Corporation, the salaries or related expenses of Corporation personnel and members of the Board, or for expenses of consultants and advisers to the Corporation.

(iii)(I) For fiscal year 1990 and succeeding fiscal years, the Cor- poration shall, in carrying out its obligations under clause (i) with respect to public television programming, provide adequate funds for an independent production service.

(II) Such independent production service shall be separate from the Corporation and shall be incorporated under the laws of the District of Columbia for the purpose of contracting with the Corporation for the expenditure of funds for the production of pub- lic television programs by independent producers and independent production entities.

(III) The Corporation shall work with organizations or associa- tions of independent producers or independent production entities to develop a plan and budget for the operation of such service that is acceptable to the Corporation.

(IV) The Corporation shall ensure that the funds provided to such independent production service shall be used exclusively in pursuit of the Corporation’s obligation to expand the diversity and innovativeness of programming available to public broadcasting.

(V) The Corporation shall report annually to Congress regard- ing the activities and expenditures of the independent production service, including carriage and viewing information for programs produced or acquired with funds provided pursuant to subclause (I). At the end of fiscal years 1992, 1993, 1994, and 1995, the Cor- poration shall submit a report to Congress evaluating the perform- ance of the independent production service in light of its mission to expand the diversity and innovativeness of programming avail- able to public broadcasting.

(VI) The Corporation shall not contract to provide funds to any such independent production service, unless that service agrees to comply with public inspection requirements established by the Cor- poration within 3 months after the date of enactment of this sub- clause. Under such requirements the service shall maintain at its offices a public file, updated regularly, containing information re-

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1 So in law. Probably should be (n( �/i>(3)(B).

lating to the service’s award of funds for the production of program- ming. The information shall be available for public inspection and copying for at least 3 years and shall be of the same kind as the information required to be maintained by the Corporation under subsection (l)(4)(B).

(4) Funds may not be distributed pursuant to this subsection to the Public Broadcasting Service or National Public Radio (or any successor organization), or to the licensee or permittee of any pub- lic broadcast station, unless the governing body of any such organi- zation, any committee of such governing body, or any advisory body of any such organization, holds open meetings preceded by reason- able notice to the public. All persons shall be permitted to attend any meeting of the board, or of any such committee or body, and no person shall be required, as a condition to attendance at any such meeting, to register such person’s name or to provide any other information. Nothing contained in this paragraph shall be construed to prevent any such board, committee, or body from hold- ing closed sessions to consider matters relating to individual em- ployees, proprietary information, litigation and other matters re- quiring the confidential advice of counsel, commercial or financial information obtained from a person on a privileged or confidential basis, or the purchase of property or services whenever the pre- mature exposure of such purchase would compromise the business interests of any such organization. If any such meeting is closed pursuant to the provisions of this paragraph, the organization in- volved shall thereafter (within a reasonable period of time) make available to the public a written statement containing an expla- nation of the reasons for closing the meeting.

(5) Funds may not be distributed pursuant to this subsection to any public telecommunications entity that does not maintain for public examination copies of the annual financial and audit reports, or other information regarding finances, submitted to the Corpora- tion pursuant to subsection (1)(3)(B) 1.

(6)(A) The Corporation shall conduct a study and prepare a plan in consultation with public television licensees (or designated representatives of those licensees) and the Public Broadcasting Service, on how funds available to the Corporation under para- graph (3)(A)(ii)(II) can be best allocated to meet the objectives of this Act with regard to national public television programming. The plan, which shall be based on the conclusions resulting from the study, shall be submitted by the Corporation to the Congress not later than January 31, 1990. Unless directed otherwise by an Act of Congress, the Corporation shall implement the plan during the first fiscal year beginning after the fiscal year in which the plan is submitted to Congress.

(B) The Corporation shall make a basic grant from the portion reserved for television stations under paragraph (3)(A)(ii)(I) to each licensee and permittee of a public television station that is on the air. The Corporation shall assist radio stations to maintain and im- prove their service where public radio is the only broadcast service available. The balance of the portion reserved for television sta- tions and the total portion reserved for radio stations under para-

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graph (3)(A)(iii)(I) shall be distributed to licensees and permittees of such stations in accordance with eligibility criteria (which the Corporation shall review periodically in consultation with public radio and television licensees or permittees, or their designated representatives) that promote the public interest in public broad- casting, and on the basis of a formula designed to—

(i) provide for the financial needs and requirements of stations in relation to the communities and audiences such sta- tions undertake to serve;

(ii) maintain existing, and stimulate new, sources of non- Federal financial support for stations by providing incentives for increases in such support; and

(iii) assure that each eligible licensee and permittee of a public radio station receives a basic grant. (7) The funds distributed pursuant to paragraph (3)(A)(ii)(I)

and (iii)(I) may be used at the discretion of the recipient for pur- poses related primarily to the production or acquisition of program- ming.

(8)(A) Funds may not be distributed pursuant to this subpart to any public broadcast station (other than any station which is owned and operated by a state, a political or special purpose sub- division of a state or a public agency) unless such station estab- lishes a community advisory board. Any such station shall under- take good faith efforts to assure that (i) its advisory board meets at regular intervals; (ii) the members of its advisory board regu- larly attend the meetings of the advisory board; and (iii) the com- position of its advisory board are reasonably representative of the diverse needs and interests of the communities served by such sta- tion.

(B) The board shall be permitted to review the programming goals established by the station, the service provided by the sta- tion, and the significant policy decisions rendered by the station. The board may also be delegated any other responsibilities, as de- termined by the governing body of the station. The board shall ad- vise the governing body of the station with respect to whether the programming and other policies of such station are meeting the specialized educational and cultural needs of the communities served by the station, and may make such recommendations as it considers appropriate to meet such needs.

(C) The role of the board shall be solely advisory in nature, ex- cept to the extent other responsibilities are delegated to the board by the governing body of the station. In no case shall the board have any authority to exercise any control over the daily manage- ment or operation of the station.

(D) In the case of any public broadcast station (other than any station which is owned and operated by a state, a political or spe- cial purpose subdivision of a State, or a public agency) in existence on the effective date of this paragraph, such station shall comply with the requirements of this paragraph with respect to the estab- lishment of a community advisory board not later than 180 days after such effective date.

(E) The provision of subparagraph (A) prohibiting the distribu- tion of funds to any public broadcast station (other than any sta- tion which is owned and operated by a State, a political or special

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1 Section 701 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (P.L. 105–277, 112 Stat. 2681–389) amended ‘‘section 396(k)(9) of Title 47’’, which is not a codified title, rather than section 396(k)(9) of the Communications Act of 1934. The amend- ment refers to the ‘‘Internal Revenue Code’’ rather than the Internal Revenue Code of 1986. The amendment is effected in this compilation, but the reference to the Internal Revenue Code is not corrected.

purpose subdivision of a State, or a public agency) unless such sta- tion establishes a community advisory board shall be the exclusive remedy for the enforcement of the provisions of this paragraph.

(9) Funds may not be distributed pursuant to this subsection to the Public Broadcasting Service or National Public Radio (or any successor organization) unless assurances are provided to the Cor- poration that no officer or employee of the Public Broadcasting Service or National Public Radio (or any successor organization), as the case may be, will be compensated in excess of reasonable com- pensation as determined pursuant to Section 4958 of the Internal Revenue Code for services that the officer or employee renders to organization, 1 and unless further assurances are provided to the Corporation that no officer or employee of such an entity will be loaned money by that entity on an interest-free basis.

(10)(A) There is hereby established in the Treasury a fund which shall be known as the Public Broadcasting Satellite Inter- connection Fund (hereinafter in this subsection referred to as the ‘‘Satellite Interconnection Fund’’), to be administered by the Sec- retary of the Treasury.

(B) There is authorized to be appropriated to the Satellite Interconnection Fund, for fiscal year 1991, the amount of $200,000,000. If such amount is not appropriated in full for fiscal year 1991, the portion of such amount not yet appropriated is au- thorized to be approriated for fiscal years 1992 and 1993. Funds appropriated to the Satellite Interconnection Fund shall remain available until expended.

(C) The Secretary of the Treasury shall make available and disburse to the Corporation, at the beginning of fiscal year 1991 and of each succeeding fiscal year thereafter, such funds as have been appropriated to the Satellite Interconnection Fund for the fis- cal year in which such disbursement is to be made.

(D) Notwithstanding any other provision of this subsection ex- cept paragraphs (4), (5), (8), and (9), all funds appropriated to the Satellite Interconnection Fund and interest thereon—

(i) shall be distributed by the Corporation to the licensees and permittees of noncommercial educational television broad- cast stations providing public telecommunications services or the national entity they designate for satellite interconnection purposes and to those public telecommunications entities par- ticipating in the public radio satellite interconnection system or the national entity they designate for satellite interconnec- tion purposes, exclusively for the capital costs of the replace- ment, refurbishment, or upgrading of their national satellite interconnection systems and associated maintenance of such systems; and

(ii) shall not be used for the administrative costs of the Corporation, the salaries or related expenses of Corporation

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personnel and members of the Board, or for expenses of con- sultants and advisers to the Corporation. (11)(A) Funds may not be distributed pursuant to this sub-

section for any fiscal year to the licensee or permittee of any public broadcast station if such licensee or permittee—

(i) fails to certify to the Corporation that such licensee or permittee complies with the Commission’s regulations con- cerning equal employment opportunity as published under sec- tion 73.2080 of title 47, Code of Federal Regulations, or any successor regulations thereto; or

(ii) fails to submit to the Corporation the report required by subparagraph (B) for the preceding calendar year. (B) A licensee or permittee of any public broadcast station with

more than five full-time employees to file annually with the Cor- poration a statistical report, consistent with reports required by Commission regulation, identifying by race and sex the number of employees in each of the following full-time and part-time job cat- egories:

(i) Officials and managers. (ii) Professionals. (iii) Technicians. (iv) Semiskilled operatives. (v) Skilled craft persons. (vi) Clerical and office personnel. (vii) Unskilled operatives. (viii) Service workers.

(C) In addition, such report shall state the number of job open- ings occurring during the course of the year. Where the job open- ings were filled in accordance with the regulations described in subparagraph (A)(i), the report shall so certify, and where the job openings were not filled in accordance with such regulations, the report shall contain a statement providing reasons therefor. The statistical report shall be available to the public at the central of- fice and at every location where more than five full-time employees are regularly assigned to work.

(12) Funds may not be distributed under this subsection to any public broadcasting entity that directly or indirectly—

(A) rents contributor or donor names (or other personally identifiable information) to or from, or exchanges such names or information with, any Federal, State, or local candidate, po- litical party, or political committee; or

(B) discloses contributor or donor names, or other person- ally identifiable information, to any nonaffiliated third party unless—

(i) such entity clearly and conspicuously discloses to the contributor or donor that such information may be dis- closed to such third party;

(ii) the contributor or donor is given the opportunity, before the time that such information is initially disclosed, to direct that such information not be disclosed to such third party; and

(iii) the contributor or donor is given an explanation of how the contributor or donor may exercise that nondisclo- sure option.

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Records and Audit

(l)(1)(A) The accounts of the Corporation shall be audited an- nually in accordance with generally accepted auditing standards by independent certified public accountants or independent licensed public accountants certified or licensed by a regulatory authority of a State or other political subdivision of the United States, except that such requirements shall not preclude shared auditing arrange- ments between any public telecommunications entity and its li- censee where such licensee is a public or private institution. The audits shall be conducted at the place or places where the accounts of the Corporation are normally kept. All books, accounts, financial records, reports, files, and all other papers, things, or property be- longing to or in use by the Corporation and necessary to facilitate the audits shall be made available to the person or persons con- ducting the audits; and full facilities for verifying transactions with the balances or securities held by depositories, fiscal agents and custodians shall be afforded to such person or persons.

(B) The report of each such independent audit shall be in- cluded in the annual report required by subsection (i) of this sec- tion. The audit report shall set forth the scope of the audit and in- clude such statements as are necessary to present fairly the Cor- poration’s assets and liabilities, surplus or deficit, with an analysis of the changes therein during the year, supplemented in reasonable detail by a statement of the Corporation’s income and expenses during the year, and a statement of the sources and application of funds, together with the independent author’s opinion of those statements.

(2)(A) The financial transactions of the Corporation for any fis- cal year during which Federal funds are available to finance any portion of its operations may be audited by the General Accounting Office in accordance with the principles and procedures applicable to commercial corporate transactions and under such rules and reg- ulations as may be prescribed by the Comptroller General of the United States. Any such audit shall be conducted at the place or places where accounts of the Corporation are normally kept. The representative of the General Accounting Office shall have access to all books, accounts, records, reports, files, and all other papers, things, or property belonging to or in use by the Corporation per- taining to its financial transactions and necessary to facilitate the audit, and they shall be afforded full facilities for verifying trans- actions with the balances or securities held by depositories, fiscal agents, and custodians. All such books, accounts, records, reports, files, papers and property of the Corporation shall remain in pos- session and custody of the Corporation.

(B) A report of each such audit shall be made by the Comp- troller General to the Congress. The report to the Congress shall contain such comments and information as the Comptroller Gen- eral may deem necessary to inform Congress of the financial oper- ations and condition of the Corporation, together with such rec- ommendations with respect thereto as he may deem advisable. The report shall also show specifically any program, expenditure, or other financial transaction or undertaking observed in the course of the audit, which, in the opinion of the Comptroller General, has

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been carried on or made without authority of law. A copy of each report shall be furnished to the President, to the Secretary, and to the Corporation at the time submitted to the Congress.

(3)(A) Not later than 1 year after the effective date of this paragraph, the Corporation, in consultation with the Comptroller General, and as appropriate with others, shall develop accounting principles which shall be used uniformly by all public telecommuni- cations entities receiving funds under this subpart, taking into ac- count organizational differences among various categories of such entites. Such principles shall be designed to account fully for all funds received and expended for public telecommunications pur- poses by such entities.

(B) Each public telecommunications entity receiving funds under this subpart shall be required—

(i) to keep its books, records, and accounts in such form as may be required by the Corporation;

(ii)(I) to undergo a biennial audit by independent certified public accountants or independent licensed public accountants certified or licensed by a regulatory authority of a State, which audit shall be in accordance with auditing standards developed by the Corporation, in consultation with the Comptroller Gen- eral; or

(II) to submit a financial statement in lieu of the audit re- quired by subclause (I) if the Corporation determines that the cost burden of such audit on such entity is excessive in light of the financial condition of such entity; and

(iii) to furnish biennuially to the Corporation a copy of the audit report required pursuant to the clause (ii), as well as such other information regarding finances (including an annual financial report) as the Corporation may require. (C) Any recipient of assistance by grant or contract under this

section, other than a fixed price contract awarded pursuant to com- petitive bidding procedures, shall keep such records as may be rea- sonably necessary to disclose fully the amount and the disposition by such recipient of such assistance, that total cost of the project or undertaking in connection with which such assistance is given or used, and the amount and nature of that portion of the cost of the projects or undertaking supplied by other sources, and such other records as will facilitate an effective audit.

(D) The Corporation or any of its duly authorized representa- tives shall have access to any books, documents, papers, and records of any recipient of assistance for the purpose of auditing and examining all funds received or expended for public tele- communications purposes by the recipient. The Comptroller Gen- eral of the United States or any of his duly authorized representa- tives also shall have access to such books, documents, papers, and records for the purpose of auditing and examining all funds re- ceived or expended for public telecommunications purposes during any fiscal year for which Federal funds are available to the Cor- poration.

(4)(A) The Corporation shall maintain the information de- scribed in subparagraphs (B), (C), and (D) at its offices for public inspection and copying for at least 3 years, according to such rea- sonable guidelines as the Corporation may issue. This public file

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shall be updated regularly. This paragraph shall be effective upon its enactment and shall apply to all grants awarded after January 1, 1993.

(B) Subsequent to any award of funds by the Corporation for the production or acquisition of national broadcasting programming pursuant to subsection (k)(3)(A) (ii)(II) or (iii)(II), the Corporation shall make available for public inspection the following:

(i) Grant and solicitation guidelines for proposals for such programming.

(ii) The reasons for selecting the proposal for which the award was made.

(iii) Information on each program for which the award was made, including the names of the awardee and producer (and if the awardee or producer is a corporation or partnership, the principals of such corporation or partnership), the monetary amount of the award, and the title and description of the pro- gram (and of each program in a series of programs).

(iv) A report based on the final audit findings resulting from any audit of the award by the Corporation or the Comp- troller General.

(v) Reports which the Corporation shall require to be pro- vided by the awardee relating to national public broadcasting programming funded, produced, or acquired by the awardee with such funds. Such reports shall include, where applicable, the information described in clauses (i), (ii), and (iii), but shall exclude proprietary, confidential, or privileged information. (C) The Corporation shall make available for public inspection

the final report required by the Corporation on an annual basis from each recipient of funds under subsection (k)(3)(A)(iii)(III), ex- cluding proprietary, confidential, or privileged information.

(D) The Corporation shall make available for public inspection an annual list of national programs distributed by public broad- casting entities that receive funds under subsection (k)(3)(A) (ii)(III) or (iii)(II) and are engaged primarily in the national dis- tribution of public television or radio programs. Such list shall in- clude the names of the programs (or program series), producers, and providers of funding.

(m)(1) Prior to July 1, 1989, and every three years thereafter, the Corporation shall compile an assessment of the needs of minor- ity and diverse audiences, the plans of public broadcasting entities and public telecommunications entities to address such needs, the ways radio and television can be used to help these underrep- resented groups, and projections concerning minority employment by public broadcasting entities and public telecommunications enti- ties. Such assessment shall address the needs of racial and ethnic minorities, new immigrant populations, people for whom English is a second language, and adults who lack basic reading skills.

(2) Commencing July 1, 1989, the Corporation shall prepare an annual report on the provision by public broadcasting entities and public telecommunications entities of service to the audiences de- scribed in paragraph (1). Such report shall address programming (including that which is produced by minority producers), training, minority employment, and efforts by the Corporation to increase the number of minority public radio and television stations eligible

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for financial support from the Corporation. Such report shall in- clude a summary of the statistical reports received by the Corpora- tion pursuant to subsection (k)(11), and a comparison of the infor- mation contained in those reports with the information submitted by the Corporation in the previous year’s annual report.

(3) As soon as they have been prepared, each assessment and annual report required under paragraphs (1) and (2) shall be sub- mitted to Congress.

Subpart E—General

SEC. 397. ø47 U.S.C. 397¿ DEFINITIONS. For the purposes of this part— (1) The term ‘‘construction’’ (as applied to public telecommuni-

cations facilities) means acquisition (including acquisition by lease), installation, and modernization of public telecommunications facili- ties and planning and preparatory steps incidental to any such ac- quisition, installation, or modernization.

(2) The term ‘‘Corporation’’ means the Corporation for Public Broadcasting authorized to be established in subpart D.

(3) The term ‘‘interconnection’’ means the use of microwave equipment, boosters, translators, repeaters, communication space satellites, or other apparatus or equipment for the transmission and distribution of television or radio programs to public tele- communications entities.

(4) The term ‘‘interconnection system’’ means any system of interconnection facilities used for the distribution of programs to public telecommunications entities.

(5) The term ‘‘meeting’’ means the deliberations of at least the number of members of a governing or advisory body, or any com- mittee thereof, required to take action on behalf of such body or committee where such deliberations determine or result in the joint conduct or disposition of the governing or advisory body’s business, or the committee’s business, as the case may be, but only to the extent that such deliberations relate to public broadcasting.

(6) The terms ‘‘noncommercial educational broadcast station’’ and ‘‘public broadcast station’’ mean a television or radio broadcast station which—

(A) under the rules and regulations of the Commission in effect on the effective date of this paragraph, is eligible to be licensed by the Commission as a noncommercial educational radio or television broadcast station and which is owned and operated by a public agency or nonprofit private foundation, corporation, or association; or

(B) is owned and operated by a municipality and which transmits only noncommercial programs for education pur- poses. (7) The term ‘‘noncommercial telecommunications entity’’

means any enterprise which— (A) is owned and operated by a State, a political or special

purpose subdivision of a State, a public agency, or a nonprofit private foundation, corporation, or association; and

(B) has been organized primarily for the purpose of dis- seminating audio or video noncommercial educational and cul-

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tural programs to the public by means other than a primary television or radio broadcast station, including, but not limited to, coaxial cable, optical fiber, broadcast translators, cassettes, discs, microwave, or laser transmission through the atmos- phere. (8) The term ‘‘nonprofit’’ (as applied to any foundation, corpora-

tion, or association) means a foundation, corporation, or associa- tion, no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.

(9) The term ‘‘non-Federal financial support’’ means the total value of cash and the fair market value of property and services (including, to the extent provided in the second sentence of this paragraph, the personal services of volunteers) received—

(A) as gifts, grants, bequests, donations, or other contribu- tions for the construction or operation of noncommercial edu- cational broadcast stations, or for the production, acquisition, distribution, or dissemination of educational television or radio programs, and related activities, from any source other than (i) the United States or any agency or instrumentality of the United States; or (ii) any public broadcasting entity; or

(B) as gifts, grants, donations, contributions, or payments from any State, or any educational institution, for the construc- tion or operation of noncommercial educational broadcast sta- tions or for the production, acquisition, distribution, or dissemi- nation of educational television or radio programs, or payments in exchange for services or materials with respect to the provi- sion of educational or instructional television or radio programs.

Such term includes the fair market value of personal services of volunteers, as computed using the valuation standards established by the Corporation, but only with respect to such an entity in a fis- cal year, to the extent that the value of the services does not exceed 5 percent of the total non-Federal financial support of the entity in such fiscal year.

(10) The term ‘‘preoperational expenses’’ means all non- construction costs incurred by new telecommunications entities be- fore the date on which they begin providing service to the public, and all nonconstruction costs associated with expansion of existing entities before the date on which such expanded capacity is acti- vated, except that such expenses shall not include any portion of the salaries of any personnel employed by an operating public tele- communications entity.

(11) The term ‘‘Public broadcasting entity’’ means the Corpora- tion, any licensee or permittee of a public broadcast station, or any nonprofit institution engaged primarily in the production, acquisi- tion, distribution, or dissemination of educational and cultural tele- vision or radio programs.

(12) The term ‘‘public telecommunications entity’’ means any enterprise which—

(A) is a public broadcast station or a noncommercial tele- communications entity; and

(B) disseminates public telecommunications services to the public.

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(13) The term ‘‘public telecommunications facilities’’ means ap- paratus necessary for production, interconnection, captioning, broadcast, or other distribution of programming, including, but not limited to, studio equipment, cameras, microphones, audio and video storage or reproduction equipment, or both, signal processors and switchers, towers, antennas, transmitters, translators, micro- wave equipment, mobile equipment, satellite communications equipment, instructional television fixed service equipment, sub- sidiary communications authorization transmitting and receiving equipment, cable television equipment, video and audio cassettes and discs, optical fiber communications equipment, and other means of transmitting, emitting, storing, and receiving images and sounds, or intelligence, except that such term does not include the buildings to house such apparatus (other than small equipment shelters which are part of satellite earth stations, translators, microwave interconnection facilities, and similar facilities).

(14) The term ‘‘public telecommunications services’’ means non- commercial educational and cultural radio and television programs, and related noncommercial instructional or informational material that may be transmitted by means of electronic communications.

(15) The term ‘‘Secretary’’ means the Secretary of Commerce when such term is used in subpart A and subpart B, and the Sec- retary of Health and Human Services when such term is used in subpart C, subpart D, and this subpart.

(16) The term ‘‘State’’ includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, Amer- ican Samoa, the Northern Mariana Islands, and the Trust Terri- tory of the Pacific Islands.

(17) The term ‘‘system of public telecommunications entities’’ means any combination of public telecommunications entities act- ing cooperatively to produce, acquire, or distribute programs, or to undertake related activities. SEC. 398. ø47 U.S.C. 398¿ FEDERAL INTERFERENCE OR CONTROL PRO-

HIBITED; EQUAL EMPLOYMENT OPPORTUNITY. (a) Nothing contained in this part shall be deemed (1) to

amend any other provision of, or requirement under, this Act; or (2) except to the extent authorized in subsection (b), to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over public tele- communications, or over the Corporation or any of its grantees or contractors, or over the charter or bylaws of the Corporation, or over the curriculum, program of instruction, or personnel of any educational institution, school system, or public telecommuni- cations entity.

(b)(1) Equal opportunity in employment shall be afforded to all persons by the Public Broadcasting Service and National Public Radio (or any successor organization) and by all public tele- communications entities receiving funds pursuant to subpart C (hereinafter in this subsection referred to as ‘‘recipients’’), in ac- cordance with the equal employment opportunity regulations of the Commission, and no person shall be subjected to discrimination in employment by any recipient on the grounds of race, color, religion, national origin, or sex.

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(2)(A) The Secretary is authorized and directed to enforce this subsection and to prescribe such rules and regulations as may be necessary to carry out the functions of the Secretary under this subsection.

(B) The Secretary shall provide for close coordination with the Commission in the administration of the responsibilities of the Sec- retary under this subsection which are of interest to or affect the functions of the Commission so that, to the maximum extent pos- sible consistent with the enforcement responsibilities of each, the reporting requirements of public telecommunications entities shall be uniformly based upon consistent definitions and categories of in- formation.

(3)(A) The Corporation shall incorporate into each grant agree- ment or contract with any recipient entered into on or after the ef- fective date of the rules and regulations prescribed by the Sec- retary pursuant to paragraph (2)(A), a statement indicating that, as a material part of the terms and conditions of the grant agree- ment or contract, the recipient will comply with the provisions of paragraph (1) and the rules and regulations prescribed pursuant to paragraph (2)(A). Any person which desires to be a recipient (with- in the meaning of paragraph (1)) of funds under subpart C shall, before receiving any such funds, provide to the Corporation any in- formation which the Corporation may require to satisfy itself that such person is affording equal opportunity in employment in ac- cordance with the requirements of this subsection. Determinations made by the Corporation in accordance with the preceding sentence shall be based upon guidelines relating to equal opportunity in em- ployment which shall be established by rule by the Secretary.

(B) If the Corporation is not satisfied that any such person is affording equal opportunity in employment in accordance with the requirements of this subsection, the Corporation shall notify the Secretary, and the Secretary shall review the matter and make a final determination regarding whether such person is affording equal opportunity in employment. In any case in which the Sec- retary conducts a review under the preceding sentence the Cor- poration shall make funds available to the person involved pursu- ant to the grant application of such person (if the Corporation would have approved such application but for the finding of the Corporation under this paragraph) pending a final determination of the Secretary upon completion of such review. The Corporation shall monitor the equal employment opportunity practices of each recipient throughout the duration of the grant or contract.

(C) The provisions of subparagraph (A) and subparagraph (B) shall take effect on the effective date of the rules and regulations prescribed by the Secretary pursuant to paragraph (2)(A).

(4) Based upon its responsibilities under paragraph (3), the Corporation shall provide an annual report for the preceding fiscal year ending September 30 to the Secretary on or before the 15th day of February of each year. The report shall contain information in the form required by the Secretary. The Corporation shall sub- mit a summary of such report to the President and the Congress as part of the report required in section 396(i). The Corporation shall provide other information in the form which the Secretary

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may require in order to carry out the functions of the Secretary under this subsection.

(5) Whenever the Secretary makes a final determination, pur- suant to the rules and regulations which the Secretary shall pre- scribe, that a recipient is not in compliance with paragraph (1), the Secretary shall within 10 days after such determination, notify the recipient in writing of such determination and request the recipient to secure compliance. Unless the recipient within 120 days after re- ceipt of such written notice—

(A) demonstrates to the Secretary that the violation has been corrected; or

(B) enters into a compliance agreement approved by the Secretary;

the Secretary shall direct the Corporation to reduce or suspend any further payments of funds under this part to the recipient and the Corporation shall comply with such directive. Resumption of pay- ments shall take place only when the Secretary certifies to the Cor- poration that the recipient has entered into a compliance agree- ment approved by the Secretary. A recipient whose funds have been reduced or suspended under this paragraph may apply at any time to the Secretary for such certification.

(c) Nothing in this section shall be construed to authorize any department, agency, officer, or employee of the United States to ex- ercise any direction, supervision, or control over the content or dis- tribution of public telecommunications programs and services, or over the curriculum or program of instruction of any educational institution or school system. SEC. 399. ø47 U.S.C. 399¿ SUPPORT OF POLITICAL CANDIDATES PRO-

HIBITED. No noncommercial educational broadcasting station may sup-

port or oppose any candidate for political office. SEC. 399A. ø47 U.S.C. 399a¿ USE OF BUSINESS OR INSTITUTIONAL

LOGOGRAMS. (a) For purposes of this section, the term ‘‘business or institu-

tional logogram’’ means any aural or visual letters or words, or any symbol or sign, which is used for the exclusive purpose of identi- fying any corporation, company, or other organization, and which is not used for the purpose of promoting the products, services, or facilities of such corporation, company, or other organization.

(b) Each public television station and each public radio station shall be authorized to broadcast announcements which include the use of any business or institutional logogram and which include a reference to the location of the corporation, company, or other orga- nization involved, except that such announcements may not inter- rupt regular programming.

(c) The provisions of this section shall not be construed to limit the authority of the Commission to prescribe regulations relating to the manner in which logograms may be used to identify corpora- tions, companies, or other organizations. SEC. 399B. ø47 U.S.C. 399b¿ OFFERING OF CERTAIN SERVICES, FACILI-

TIES, OR PRODUCTS BY PUBLIC BROADCAST STATIONS. (a) For purposes of this section, the term ‘‘advertisement’’

means any message or other programming material which is broad-

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cast or otherwise transmitted in exchange for any remuneration, and which is intended—

(1) to promote any service, facility, or product offered by any person who is engaged in such offering for profit;

(2) to express the views of any person with respect to any matter of public importance or interest; or

(3) to support or oppose any candidate for political office. (b)(1) Except as provided in paragraph (2), each public broad-

cast station shall be authorized to engage in the offering of serv- ices, facilities, or products in exchange for remuneration.

(2) No public broadcast station may make its facilities avail- able to any person for the broadcasting of any advertisement.

(c) Any public broadcast station which engages in any offering specified in subsection (b)(1) may not use any funds distributed by the Corporation under section 396(k) to defray any costs associated with such offering. Any such offering by a public broadcast station shall not interfere with the provision of public telecommunications services by such station.

(d) Each public broadcast station which engages in the activity specified in subsection (b)(1) shall, in consultation with the Cor- poration, develop an accounting system which is designed to iden- tify any amounts received as remuneration for, or costs related to, such activities under this section, and to account for such amounts separately from any other amounts received by such station from any source.

TITLE IV—PROCEDURAL AND ADMINISTRATIVE PROVISIONS

SEC. 401. ø47 U.S.C. 401¿ JURISDICTION TO ENFORCE ACT AND ORDERS OF COMMISSION.

(a) The district courts of the United States shall have jurisdic- tion, upon application of the Attorney General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions of this Act by any person, to issue a writ or writs of mandamus commanding such person to comply with the provisions of this Act.

(b) If any person fails or neglects to obey any order of the Com- mission other than for the payment of money, while the same is in effect, the Commission or any party injured thereby, or the United States, by its Attorney General, may apply to the appropriate dis- trict court of the United States for the enforcement of such order. If, after hearing, that court determines that the order was regu- larly made and duly served, and that the person is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction or other proper process, mandatory or otherwise, to restrain such person or the officers, agents, or representatives of such person, from further disobedience of such order, or to enjoin upon it or them obedience to the same.

(c) Upon the request of the Commission it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all nec-

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1 Margin of paragraph (10) so in law.

essary proceedings for the enforcement of the provisions of this Act and for the punishment of all violations thereof, and the costs and expenses of such prosecutions shall be paid out of the appropria- tions for the expenses of the courts of the United States. SEC. 402. ø47 U.S.C. 402¿ PROCEEDINGS TO ENJOIN, SET ASIDE, ANNUL,

OR SUSPEND ORDERS OF THE COMMISSION. (a) Any proceeding to enjoin, set aside, annul, or suspend any

order of the Commission under this Act (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in chapter 158 of title 28, United States Code.

(b) Appeals may be taken from decisions and orders of the Commission to the United States Court of Appeals for the District of Columbia in any of the following cases:

(1) By any applicant for a construction permit or station li- cense, whose application is denied by the Commission.

(2) By any applicant for the renewal or modification of any such instrument of authorization whose application is denied by the Commission.

(3) By any party to an application for authority to transfer, as- sign, or dispose of any such instrument of authorization, or any rights thereunder, whose application is denied by the Commission.

(4) By any applicant for the permit required by section 325 of this act whose application has been denied by the Commission, or by any permittee under said section whose permit has been revoked by the Commission.

(5) By the holder of any construction permit or station license which has been modified or revoked by the Commission.

(6) By any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1), (2), (3), (4), and (9) hereof.

(7) By any person upon whom an order to cease and desist has been served under section 312 of this Act.

(8) By any radio operator whose license has been suspended by the Commission.

(9) By any applicant for authority to provide interLATA serv- ices under section 271 of this Act whose application is denied by the Commission.

(10) 1 By any person who is aggrieved or whose interests are adversely affected by a determination made by the Com- mission under section 717(a)(3). (c) Such appeal shall be taken by filing a notice of appeal with

the court within thirty days from the date upon which public notice is given of the decision or order complained of. Such notice of ap- peal shall contain a concise statement of the nature of the preceedings as to which the appeal is taken; a concise statement of the reasons on which the appellant intends to rely, separately stated and numbered; and proof of service of a true copy of said no- tice and statement upon the Commission. Upon filing of such no- tice, the court shall have jurisdiction of the proceedings and of the questions determined therein and shall have power, by order, di-

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rected to the Commission or any other party to the appeal, to grant such temporary relief as it may deem just and proper. Orders granting temporary relief may be either affirmative or negative in their scope and application so as to permit either the maintenance of the status quo in the matter in which the appeal is taken or the restoration of a position or status terminated or adversely affected by the order appealed from and shall, unless otherwise ordered by the court, be effective pending hearing and determination of said appeal and compliance by the Commission with the final judgment of the court rendered in said appeal.

(d) Upon the filing of any such notice of appeal the appellant shall, not later than five days after the filing of such notice, notify each person shown by the records of the Commission to be inter- ested in said appeal of the filing and pendency of the same. The Commission shall file with the court the record upon which the order complained of was entered, as provided in section 2112 of title 28, United States Code.

(e) Within thirty days after the filing of any such appeal any interested person may intervene and participate in the proceedings had upon said appeal by filing with the court a notice of intention to intervene and a verified statement showing the nature of the in- terest of such party, together with proof of service of true copies of said notice and statement, both upon appellant and upon the Com- mission. Any person who would be aggrieved or whose interest would be adversely affected by a reversal or modification of the order of the Commission complained of shall be considered an in- terested party.

(f) The record and briefs upon which any such appeal shall be heard and determined by the court shall contain such information and material, and shall be prepared within such time and in such manner as the court may by rule prescribe.

(g) The court shall hear and determine the appeal upon the record before it in the manner prescribed by section 706 of title 5, United States Code.

(h) In the event that the court shall render a decision and enter an order reversing the order of the Commission, it shall re- mand the case to the Commission to carry out the judgment of the court and it shall be the duty of the Commission, in the absence of the proceedings to review such judgment, to forthwith give effect thereto, and unless otherwise ordered by the court, to do so upon the basis of the proceedings already had and the record upon which said appeal was heard and determined.

(i) The court may, in its discretion, enter judgment for costs in favor of or against an appellant, or other interested parties inter- vening in said appeal, but not against the Commission, depending upon the nature of the issues involved upon said appeal and the outcome thereof.

(j) The court’s judgment shall be final, subject, however, to re- view by the Supreme Court of the United States upon writ of cer- tiorari on petition therefor under section 1254 of title 28 of the United States Code, by the appellant, by the Commission, or by any interested party intervening in the appeal, or by certification by the court pursuant to the provisions of that section.

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290Sec. 403 COMMUNICATIONS ACT OF 1934

SEC. 403. ø47 U.S.C. 403¿ INQUIRY BY COMMISSION ON ITS OWN MO- TION.

The Commission shall have full authority and power at any time to institute an inquiry, on its own motion, in any case and as to any matter or thing concerning which complaint is authorized to be made, to or before the Commission by any provision of this Act, or concerning which any question may arise under any of the provi- sions of this Act, or relating to the enforcement of any of the provi- sions of this Act. The Commission shall have the same powers and authority to proceed with any inquiry instituted on its own motion as though it had been appealed to by complaint or petition under any of the provisions of this Act, including the power to make and enforce any order or orders in the case, or relating to the matter or thing concerning which the inquiry is had, excepting orders for the payment of money. SEC. 404. ø47 U.S.C. 404¿ REPORTS OF INVESTIGATIONS.

Whenever an investigation shall be made by the Commission it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the Commission, together with its decision, order, or requirements in the premises; and in case damages are awarded such report shall include the findings of fact on which the award is made. SEC. 405. ø47 U.S.C. 405¿ RECONSIDERATIONS.

(a) After an order, decision, report, or action has been made or taken in any proceeding by the Commission, or by any designated authority within the Commission pursuant to a delegation under section 5(c)(1), any party thereto, or any other person aggrieved or whose interests are adversely affected thereby, may petition for re- consideration only to the authority making or taking the order, de- cision, report, or action; and it shall be lawful for such authority, whether it be the Commission or other authority designated under section 5(c)(1), in its discretion, to grant such a reconsideration if sufficient reason therefor be made to appear. A petition for recon- sideration must be filed within thirty days from the date upon which public notice is given of the order, decision, report, or action complained of. No such application shall excuse any person from complying with or obeying any order, decision, report, or action of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. The filing of a petition for reconsideration shall not be a condition precedent to judicial review of any such order, decision, report, or action, except where the party seeking such review (1) was not a party to the proceedings resulting in such order, decision, report, or action, or (2) relies on questions of fact or law upon which the Commission, or designated authority within the Commission, has been afforded no opportunity to pass. The Commission, or des- ignated authority within the Commission, shall enter an order, with a concise statement of the reasons therefor, denying a petition for reconsideration or granting such petition, in whole or in part, and ordering such further proceedings as may be appropriate: Pro- vided, That in any case where such petition relates to an instru- ment of authorization granted without a hearing, the Commission, or designated authority within the Commission, shall take such ac-

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tion within ninety days of the filing of such petition. Reconsider- ations shall be governed by such general rules as the Commission may establish, except that no evidence other than newly discovered evidence, evidence which has become available only since the origi- nal taking of evidence, or evidence which the Commission or des- ignated authority within the Commission believes should have been taken in the original proceeding shall be taken on any reconsider- ation. The time within which a petition for review must be filed in a proceeding to which section 402(a) applies, or within which an appeal must be taken under section 402(b) in any case, shall be computed from the date upon which the Commission gives public notice of the order, decision, report, or action complained of.

(b)(1) Within 90 days after receiving a petition for reconsider- ation of an order concluding a hearing under section 204(a) or con- cluding an investigation under section 208(b), the Commission shall issue an order granting or denying such petition.

(2) Any order issued under paragraph (1) shall be a final order and may be appealed under section 402(a). SEC. 406. ø47 U.S.C. 406¿ MANDAMUS TO COMPEL FURNISHING OF FA-

CILITIES. The district courts of the United States shall have jurisdiction

upon the relation of any person alleging any violation, by a carrier subject to this Act, of any of the provisions of this Act which pre- vent the relator from receiving service in interstate or foreign com- munication by wire or radio, or in interstate or foreign trans- mission of energy by radio, from said carrier at the same charges, or upon terms or conditions as favorable as those given by said car- rier for like communication or transmission under similar condi- tions to any other person, to issue a writ or writs of mandamus against said carrier commanding such carrier to furnish facilities for such communication or transmission to the party applying for the writ: Provided, That if any question of fact as to the proper compensation to the carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper pending the detemination of the question of fact: Provided further, That the remedy hereby given by writ of mandamus shall be cumulative and shall not be held to exclude or interfere with other remedies pro- vided by this Act. SEC. 407. ø47 U.S.C. 407¿ PETITION FOR ENFORCEMENT OF ORDER FOR

PAYMENT OF MONEY. If a carrier does not comply with an order for the payment of

money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the dis- trict court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the line of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the dis- trict court of the United States shall proceed in all respects like

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292Sec. 408 COMMUNICATIONS ACT OF 1934

other civil suits for damages, except that on the trial of such suits the findings and order of the Commission shall be prima facie evi- dence of the facts therein stated, except that the petitioner shall not be liable for costs in the district court nor for costs at any sub- sequent stage of the proceedings unless they accrue upon his ap- peal. If the petitioner shall finally prevail, he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit. SEC. 408. ø47 U.S.C. 408¿ ORDERS NOT FOR PAYMENT OF MONEY—

WHEN EFFECTIVE. Except as otherwise provided in this Act, all orders of the Com-

mission, other than orders for the payment of money, shall take ef- fect thirty calendar days from the date upon which public notice of the order is given, unless the Commission designates a different ef- fective date. All such orders shall continue in force for the period of time specified in the order or until the Commission or a court of competent jurisdiction issues a superseding order. SEC. 409. ø47 U.S.C. 409¿ GENERAL PROVISIONS RELATING TO PRO-

CEEDINGS—WITNESSES AND DEPOSITIONS. (a) In every case of adjudication (as defined in the Administra-

tive Procedure Act) which has been designated by the Commission for hearing, the person or persons conducting the hearing shall pre- pare and file an initial, tentative, or recommended decision, except where such person or persons become unavailable to the Commis- sion or where the Commission finds upon the record that due and timely execution of its functions imperatively and unavoidably re- quire that the record be certified to the Commission for initial or final decision.

(b) In every case of adjudication (as defined in the Administra- tive Procedure Act) which has been designated by the Commission for hearing, any party to the proceeding shall be permitted to file exceptions and memoranda in support thereof to the initial, ten- tative, or recommended decision, which shall be passed upon by the Commission or by the authority within the Commission, if any, to whom the function of passing upon the exceptions is delegated under section 5(d)(1): Provided, however, That such authority shall not be the same authority which made the decision to which the exception is taken.

(c)(1) In any case of adjudication (as defined in the Administra- tive Procedure Act) which has been designated by the Commission for a hearing, no person who has participated in the presentation or preparation for presentation of such case at the hearing or upon review shall (except to the extent required for the disposition of exparte matters as authorized by law) directly or indirectly make any additional presentation respecting such case to the hearing of- ficer or officers or to the Commission, or to any authority within the Commission to whom, in such case, review functions have been delegated by the Commission under section 5(d)(1), unless upon no- tice and opportunity for all parties to participate.

(2) The provision in subsection (c) of section 5 of the Adminis- trative Procedure Act which states that such subsection shall not apply in determining applications for initial licenses, shall not be

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applicable hereafter in the case of applications for initial licenses before the Federal Communications Commission.

(d) To the extent that the foregoing provisions of this section and section 5(d) are in conflict with the provisions of the Adminis- trative Procedure Act, such provisions of this section and section 5(d) shall be held to supersede and modify the provisions of that Act.

(e) For the purposes of this Act the Commission shall have the power to require by subpena the attendance and testimony of wit- nesses and the production of all books, papers, schedules of charges, contracts, agreements, and documents relating to any mat- ter under investigation. Witnesses summoned before the Commis- sion shall be paid the same fees and mileage that are paid wit- nesses in the courts of the United States.

(f) Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpena the Commission, or any party to a pro- ceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of wit- nesses and the production of books, papers, and documents under the provisions of this section.

(g) Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of con- tumacy or refusal to obey a subpena issued to any common carrier or licensee or other person, issue an order requiring such common carrier, licensee, and other person to appear before the Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.

(h) The testimony of any witness may be taken, at the instance of a party, in any proceeding or investigation pending before the Commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or investiga- tion pending before it, at any stage of such proceeding or investiga- tion. Such depositions may be taken before any judge of any court of the United States, or any United States Commissioner, or any clerk of a district court, or any chancellor, justice, or judge of a su- preme or superior court, mayor, or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to ei- ther of the parties, nor interested in the event of the proceeding or investigation. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission, as here- inbefore provided.

(i) Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth,

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294Sec. 410 COMMUNICATIONS ACT OF 1934

and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direc- tion, and shall, after it has been reduced to writing, be subscribed by the deponent.

(j) If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken be- fore an officer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be promptly filed with the Com- mission.

(k) Witnesses whose depositions are taken as authorized in this Act, and the magistrates or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States.

ø(l) Repealed.¿ (m) Any person who shall neglect or refuse to attend and tes-

tify, or to answer any lawful inquiry, or to produce books, papers, schedules of charges, contracts, agreements, and documents, if in his power to do so, in obedience to the subpena or lawful require- ment of the Commission, shall be guilty of a misdemeanor and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $100 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment. SEC. 410. ø47 U.S.C. 410¿ USE OF JOINT BOARDS—COOPERATION WITH

STATE COMMISSIONS. (a) Except as provided in section 409, the Commission may

refer any matter arising in the administration of this Act to a joint board to be composed of a member, or of an equal number of mem- bers, as determined by the Commission, from each of the States in which the wire or radio communication affected by or involved in the proceeding takes place or is proposed. For purposes of acting upon such matter any such board shall have all the jurisdiction and powers conferred by law upon an examiner provided for in sec- tion 11 of the Administrative Procedure Act, designated by the Commission, and shall be subject to the same duties and obliga- tions. The action of a joint board shall have such force and effect and its proceedings shall be conducted in such manner as the Com- mission shall by regulations prescribe. The joint board member or members for each State shall be nominated by the State commision of the State or by the Governor if there is no State commission, and appointed by the Federal Communications Commission. The Com- mission shall have discretion to reject any nominee. Joint Board members shall receive such allowances for expenses as the Com- mission shall provide.

(b) The Commission may confer with any State commission having regulatory jurisdiction with respect to carriers, regarding the relationship between rate structures, accounts, charges, prac- tices, classifications, and regulations of carriers subject to the juris- diction of such State commission and of the Commission; and the Commission is authorized under such rules and regulations as it shall prescribe to hold joint hearings with any State commission in connection with any matter with respect to which the Commission

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is authorized to act. The Commission is authorized in the adminis- tration of this Act to avail itself of such cooperation, services, records, and facilities as may be afforded by any State commission.

(c) The Commission shall refer any proceeding regarding the jurisdictional separation of common carrier property and expenses between interstate and intrastate operations, which it institutes pursuant to a notice of proposed rulemaking and, except as pro- vided in section 409 of this Act, may refer any other matter, relat- ing to common carrier communications of joint Federal-State con- cern, to a Federal-State Joint Board. The Joint Board shall possess the same jurisdiction, power, duties, and obligations as a joint board established under subsection (a) of this section, and shall prepare a recommended decision for prompt review and action by the Commission. In addition, the State members of the Joint Board shall sit with the Commission en banc at any oral agrument that may be scheduled in the proceeding. The Commission shall also af- ford the State members of the Joint Board an opportunity to par- ticipate in its deliberations, but not vote, when it has under consid- eration the recommended decision of the Joint Board or any further decisional action that may be required in the proceeding. The Joint Board shall be composed of three Commissioners of the Commis- sion and of four State commissioners nominated by the national or- ganization of the State commissions and approved by the Commis- sion. The Chairman of the Commission, or another Commissioner designated by the Commission, shall serve as Chairman of the Joint Board. SEC. 411. ø47 U.S.C. 411¿ JOINDER OF PARTIES.

(a) In any proceeding for the enforcement of the provisions of this Act, whether such proceeding be instituted before the Commis- sion or be begun originally in any district court of the United States, it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the charge, regula- tion, or practice under consideration, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers.

(b) In any suit for the enforcement of an order for the payment of money all parties in whose favor the Commission may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defend- ants in any district where any one of such joint plaintiffs could maintain such suit against any one of such joint defendants; and service of process against any one of such defendants as may not be found in the district where the suit is brought may be made in any district where such defendant carrier has its principal oper- ating office. In case of such joint suit, the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the de- fendant found to be liable to such plaintiff.

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296Sec. 412 COMMUNICATIONS ACT OF 1934

SEC. 412. ø47 U.S.C. 412¿ DOCUMENTS FILED TO BE PUBLIC RECORDS— USE IN PROCEEDINGS.

The copies of schedules of charges, classifications, and of all contracts, agreements, and arrangements between common carriers filed with the Commission as herein provided, and the statistics, tables, and figures contained in the annual or other reports of car- riers and other persons made to the Commission as required under the provisions of this Act shall be preserved as public records in the custody of the secretary of the Commission, and shall be re- ceived as prima facie evidence of what they purport to be for the purpose of investigations by the Commission and in all judicial pro- ceedings; and copies of and extracts from any of said schedules, classifications, contracts, agreements, arrangements, or reports made public records as aforesaid, certified by the secretary, under the Commission’s seal, shall be received in evidence with like effect as the originals: Provided, That the Commission may, if the public interest will be served thereby, keep confidential any contract, agreement, or arrangement relating to foreign wire or radio com- munication when the publication of such contract, agreement, or arrangement would place American communication companies at a disadvantage in meeting the competition of foreign communication companies. SEC. 413. ø47 U.S.C. 413¿ DESIGNATION OF AGENT FOR SERVICE.

It shall be the duty of every carrier subject to this Act to des- ignate in writing an agent in the District of Columbia, upon whom service of all notices and process and all orders, decisions, and re- quirements of the Commission may be made for and on behalf of said carrier in any proceeding or suit pending before the Commis- sion, and to file such designation in the office of the secretary of the Commission, which designation may from time to time be changed by like writing similarly filed; and thereupon service of all notices and process and orders, decisions, and requirements of the Commission may be made upon such carrier by leaving a copy thereof with such designated agent at his office or usual place of residence in the District of Columbia, with like effect as if made personally upon such carrier, and in default of such designation of such agent, service of any notice or other process in any proceeding before said Commission, or of any order, decision, or requirement of the Commission, may be made by posting such notice, process, order, requirement, or decision in the office of the secretary of the Commission. SEC. 414. ø47 U.S.C. 414¿ REMEDIES IN THIS ACT NOT EXCLUSIVE.

Nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies. SEC. 415. ø47 U.S.C. 415¿ LIMITATIONS AS TO ACTIONS.

(a) All actions at law by carriers for recovery of their lawful charges, or any part thereof, shall be begun, within two years from the time the cause of action accrues, and not after.

(b) All complaints against carriers for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after, subject to subsection (d) of this section.

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297 Sec. 501COMMUNICATIONS ACT OF 1934

(c) For recovery of overcharges action at law shall be begun or complaint filed with the Commission against carriers within two years from the time the cause of action accrues, and not after, sub- ject to subsection (d) of this section, except that if claim for the overcharge has been presented in writing to the carrier within the two-year period of limitation said period shall be extended to in- clude two years from the time notice in writing is given by the car- rier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice.

(d) If on or before expiration of the period of limitation in sub- section (b) or (c) a carrier begins action under subsection (a) for re- covery of lawful charges in respect of the same service, or, without beginning action, collects charges in respect of that service, said pe- riod of limitation shall be extended to include ninety days from the time such action is begun or such charges are collected by the carrier.

(e) The cause of action in respect of the transmission of a mes- sage shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after.

(f) A petition for the enforcement of an order of the Commis- sion for the payment of money shall be filed in the district court or the State court within one year from the date of the order, and not after.

(g) The term ‘‘overcharges’’ as used in this section shall be deemed to mean charges for services in excess of those applicable thereto under the schedules of charges lawfully on file with the Commission. SEC. 416. ø47 U.S.C. 416¿ PROVISIONS RELATING TO ORDERS.

(a) Every order of the Commission shall be forthwith served upon the designated agent of the carrier in the city of Washington or in such other manner as may be provided by law.

(b) Except as otherwise provided in this Act, the Commission is hereby authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper.

(c) It shall be the duty of every person, its agents and employ- ees, and any receiver or trustee thereof, to observe and comply with such orders so long as the same shall remain in effect.

TITLE V—PENAL PROVISIONS— FORFEITURES

SEC. 501. ø47 U.S.C. 501¿ GENERAL PENALTY. Any person who willfully and knowingly does or causes or suf-

fers to be done any act, matter, or thing, in this Act prohibited or declared to be unlawful, or who willfully and knowingly omits or fails to do any act, matter, or thing in this Act required to be done, or willfully and knowingly causes or suffers such omission or fail- ure, shall upon conviction thereof, be punished for such offense, for which no penalty (other than a forfeiture) is provided in this Act, by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both; except that any person, having

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298Sec. 502 COMMUNICATIONS ACT OF 1934

been once convicted of an offense punishable under this section, who is subsequently convicted of violating any provision of this Act punishable under this section, shall be punished by a fine of not more than $10,000 or by imprisonment for a term not exceeding two years, or both. SEC. 502. ø47 U.S.C. 502¿ VIOLATION OF RULES, REGULATIONS, AND SO

FORTH. Any person who willfully and knowingly violates any rule, regula- tion, restriction, or condition made or imposed by the Commission under authority of this Act, or any rule, regulation, restriction, or condition made or imposed by any international radio or wire com- munications treaty or convention, or regulations annexed thereto, to which the United States is or may hereafter become a party, shall, in addition to any other penalties provided by law, be pun- ished, upon conviction thereof, by a fine of not more than $500 for each and every day during which such offense occurs. SEC. 503. ø47 U.S.C. 503¿ FORFEITURES IN CASES OF REBATES AND

OFFSETS. (a) Any person who shall deliver messages for interstate or for-

eign transmission to any carrier, or for whom as sender or receiver, any such carrier shall transmit any interstate or foreign wire or radio communication, who shall knowingly by employee, agent, offi- cer, or otherwise, directly or indirectly, by or through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable consideration as a rebate or offset against the regular charges for transmission of such mes- sages as fixed by the schedules of charges provided for in this Act, shall in addition to any other penalty provided by this Act forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court; and in the trial of said action all such rebates or other considerations so received or accepted for a period of six years prior to the commencement of the action, may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consider- ation, so received or accepted, or both, as the case may be.

(b)(1) Any person who is determined by the Commission, in ac- cordance with paragraph (3) or (4) of this subsection, to have—

(A) willfully or repeatedly failed to comply substantially with the terms and conditions of any license, permit, certifi- cate, or other instrument or authorization issued by the Com- mission;

(B) willfully or repeatedly failed to comply with any of the provisions of this Act or of any rule, regulation, or order issued by the Commission under this Act or under any treaty, conven- tion, or other agreement to which the United States is a party and which is binding upon the United States;

(C) violated any provision of section 317(c) or 508(a) of this Act; or

(D) violated any provision of section 1304, 1343, 1464, or 2252 of title 18, United States Code;

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299 Sec. 503COMMUNICATIONS ACT OF 1934

1 Margin of subparagraph (F) so in law.

shall be liable to the United States for a forfeiture penalty. A for- feiture penalty under this subsection shall be in addition to any other penalty provided for by this Act; except that this subsection shall not apply to any conduct which is subject to forfeiture under title II, part II or III of title III, or section 506 of this Act.

(2)(A) If the violator is (i) a broadcast station licensee or per- mittee, (ii) a cable television operator, or (iii) an applicant for any broadcast or cable television operator license, permit, certificate, or other instrument or authorization issued by the Commission, the amount of any forfeiture penalty determined under this section shall not exceed $25,000 for each violation or each day of a con- tinuing violation, except that the amount assessed for any con- tinuing violation shall not exceed a total of $250,000 for any single act or failure to act described in paragraph (1) of this subsection.

(B) If the violator is a common carrier subject to the provisions of this Act or an applicant for any common carrier license, permit, certificate, or other instrument of authorization issued by the Com- mission, the amount of any forfeiture penalty determined under this subsection shall not exceed $100,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $1,000,000 for any single act or failure to act described in paragraph (1) of this subsection.

(C) Notwithstanding subparagraph (A), if the violator is— (i)(I) a broadcast station licensee or permittee; or (II) an applicant for any broadcast license, permit, certifi-

cate, or other instrument or authorization issued by the Com- mission; and

(ii) determined by the Commission under paragraph (1) to have broadcast obscene, indecent, or profane language, the amount of any forfeiture penalty determined under this sub- section shall not exceed $325,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for any single act or failure to act. (D) In any case not covered in subparagraph (A), (B), or (C),

the amount of any forfeiture penalty determined under this sub- section shall not exceed $10,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $75,000 for any sin- gle act or failure to act described in paragraph (1) of this sub- section.

(E) The amount of such forfeiture penalty shall be assessed by the Commission, or its designee, by written notice. In determining the amount of such a forfeiture penalty, the Commission or its des- ignee shall take into account the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.

(F) 1 Subject to paragraph (5) of this section, if the violator is a manufacturer or service provider subject to the require- ments of section 255, 716, or 718, and is determined by the

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300Sec. 503 COMMUNICATIONS ACT OF 1934

Commission to have violated any such requirement, the manu- facturer or provider shall be liable to the United States for a forfeiture penalty of not more than $100,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $1,000,000 for any single act or failure to act. (3)(A) At the discretion of the Commission, a forfeiture penalty

may be determined against a person under this subsection after no- tice and an opportunity for a hearing before the Commission or an administrative law judge thereof in accordance with section 554 of title 5, United States Code. Any person against whom a forfeiture penalty is determined under this paragraph may obtain review thereof pursuant to section 402(a).

(B) If any person fails to pay an assessment of a forfeiture pen- alty determined under subparagraph (A) of this paragraph, after it has become a final and unappealable order or after the appropriate court has entered final judgment in favor of the Commission, the Commission shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any ap- propriate district court of the United States. In such action, the va- lidity and appropriateness of the final order imposing the forfeiture penalty shall not be subject to review.

(4) Except as provided in paragraph (3) of this subsection, no forfeiture penalty shall be imposed under this subsection against any person unless and until—

(A) the Commission issues a notice of apparent liability, in writing, with respect to such person;

(B) such notice has been received by such person, or until the Commission has sent such notice to the last known address of such person, by registered or certified mail; and

(C) such person is granted an opportunity to show, in writ- ing, within such reasonable period of time as the Commission prescribes by rule or regulation, why no such forfeiture penalty should be imposed.

Such a notice shall (i) identify each specific provision, term, and condition of any Act, rule, regulation, order, treaty, convention, or other agreement, license, permit, certificate, instrument, or author- ization which such person apparently violated or with which such person apparently failed to comply; (ii) set forth the nature of the act or omission charged against such person and the facts upon which such charge is based; and (iii) state the date on which such conduct occurred. Any forfeiture penalty determined under this paragraph shall be recoverable pursuant to section 504(a) of this Act.

(5) No forfeiture liability shall be determined under this sub- section against any person, if such person does not hold a license, permit, certificate, or other authorization issued by the Commis- sion, and if such person is not an applicant for a license, permit, certificate, or other authorization issued by the Commission, un- less, prior to the notice required by paragraph (3) of this subsection or the notice of apparent liability required by paragraph (4) of this subsection, such person (A) is sent a citation of the violation charged; (B) is given a reasonable opportunity for a personal inter- view with an official of the Commission, at the field office of the

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301 Sec. 504COMMUNICATIONS ACT OF 1934

Commission which is nearest to such person’s place of residence; and (C) subsequently engages in conduct of the type described in such citation. The provisions of this paragraph shall not apply, however, if the person involved is engaging in activities for which a license, permit, certificate, or other authorization is required, or is a cable television system operator, if the person involved is transmitting on frequencies assigned for use in a service in which individual station operation is authorized by rule pursuant to sec- tion 307(e), or in the case of violations of section 303(q), if the per- son involved is a nonlicensee tower owner who has previously re- ceived notice of the obligations imposed by section 303(q) from the Commission or the permittee or licensee who uses that tower. Whenever the requirements of this paragraph are satisfied with re- spect to a paricular person, such person shall not be entitled to re- ceive any additional citation of the violation charged, with respect to any conduct of the type described in the citation sent under this paragraph.

(6) No forfeiture penalty shall be determined or imposed against any person under this subsection if—

(A) such person holds a broadcast station license issued under title III of this Act and if the violation charged oc- curred—

(i) more than 1 year prior to the date of issuance of the required notice or notice of apparent liability; or

(ii) prior to the date of commencement of the current term of such license,

whichever is earlier; or (B) such person does not hold a broadcast station license

issued under title III of this Act and if the violation charged occurred more than 1 year prior to the date of issuance of the required notice or notice of apparent liability.

For purposes of this paragraph, ‘‘date of commencement of the cur- rent term of such license’’ means the date of commencement of the last term of license for which the licensee has been granted a li- cense by the Commission. A separate license term shall not be deemed to have commenced as a result of continuing a license in effect under section 307(c) pending decision on an application for renewal of the license. SEC. 504. ø47 U.S.C. 504¿ PROVISIONS RELATING TO FORFEITURES.

(a) The forfeitures provided for in this Act shall be payable into the Treasury of the United States, and shall be recoverable, except as otherwise provided with respect to a forfeiture penalty deter- mined under section 503(b)(3) of this Act, in a civil suit in the name of the United States brought in the district where the person or carrier has its principal operating office or in any district through which the line or system of the carrier runs: Provided, That any suit for the recovery of a forfeiture imposed pursuant to the provisions of this Act shall be a trial de novo: Provided further, That in the case of forfeiture by a ship, said forfeiture may also be recoverable by way of libel in any district in which such ship shall arrive or depart. Such forfeitures shall be in addition to any other general or specific penalties herein provided. It shall be the duty of the various district attorneys, under the direction of the Attor-

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302Sec. 505 COMMUNICATIONS ACT OF 1934

ney General of the United States, to prosecute for the recovery of forfeitures under this Act. The costs and expenses of such prosecu- tions shall be paid from the appropriation for the expenses of the courts of the United States.

(b) The forfeitures imposed by title II, parts II and III of title III, and sections 503(b) and 506 of this Act shall be subject to remission or mitigation by the Commission, under such regulations and methods of ascertaining the facts as may seem to it advisable, and, if suit has been instituted, the Attorney General, upon request of the Commission, shall direct the discontinuance of any prosecu- tion to recover such forfeitures: Provided, however, That no for- feiture shall be remitted or mitigated after determination by a court of competent jurisdiction.

(c) In any case where the Commission issues a notice of appar- ent liability looking toward the imposition of a forfeiture under this Act, that fact shall not be used, in any other proceeding before the Commission, to the prejudice of the person to whom such notice was issued, unless (i) the forfeiture has been paid, or (ii) a court of competent jurisdiction has ordered payment of such forfeiture, and such order has become final. SEC. 505. ø47 U.S.C. 505¿ VENUE OF OFFENSES.

The trial of any offense under this Act shall be in the district in which it is committed; or if the offense is committed upon the high seas, or out of the jurisdiction of any particular State or dis- trict, the trial shall be in the district where the offender may be found or into which he shall be first brought. Whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein. SEC. 506. ø47 U.S.C. 507¿ VIOLATION OF GREAT LAKES AGREEMENT.

(a) Any vessel of the United States that is navigated in viola- tion of the provisions of the Great Lakes Agreement or the rules and regulations of the Commission made in pursuance thereof and any vessel of a foreign country that is so navigated on waters under the jurisdiction of the United States shall forfeit to the United States the sum of $500 recoverable by way of suit or libel. Each day during which such navigation occurs shall constitute a separate offense.

(b) Every willful failure on the part of the master of a vessel of the United States to enforce or to comply with the provisions of the Great Lakes Agreement or the rules and regulations of the Commission made in pursuance thereof shall cause him to forfeit to the United States the sum of $100. SEC. 507. ø47 U.S.C. 508¿ DISCLOSURE OF CERTAIN PAYMENTS.

(a) Subject to subsection (d), any employee of a radio station who accepts or agrees to accept from any person (other than such station), or any person (other than such station) who pays or agrees to pay such employee, any money, service or other valuable consid- eration for the broadcast of any matter over such station shall, in advance of such broadcast, disclose the fact of such acceptance or agreement to such station.

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303 Sec. 508COMMUNICATIONS ACT OF 1934

(b) Subject to subsection (d), any person who, in connection with the production or preparation of any program or program mat- ter which is intended for broadcasting over any radio station, ac- cepts or agrees to accept, or pays or agrees to pay, any money, service or other valuable consideration for the inclusion of any mat- ter as a part of such program or program matter, shall, in advance of such broadcast, disclose the fact of such acceptance or payment or agreement to the payee’s employer, or to the person for which such program or program matter is being produced, or to the li- censee of such station over which such program is broadcast.

(c) Subject to subsection (d), any person who supplies to any other person any program or program matter which is intended for broadcasting over any radio station shall, in advance of such broad- cast, disclose to such other person any information of which he has knowledge, or which has been disclosed to him, as to any money, service or other valuable consideration which any person has paid or accepted, or has agreed to pay or accept, for the inclusion of any matter as a part of such program or program matter.

(d) The provisions of this section requiring the disclosure of in- formation shall not apply in any case where, because of a waiver made by the Commission under section 317(d), an announcement is not required to be made under section 317.

(e) The inclusion in the program of the announcement required by section 317 shall constitute the disclosure required by this sec- tion.

(f) The term ‘‘service or other valuable consideration’’ as used in this section shall not include any service or property furnished without charge or at a nominal charge for use on, or in connection with, a broadcast, or for use on a program which is intended for broadcasting over any radio station, unless it is so furnished in consideration for an identification in such broadcast or in such pro- gram of any person, product, service, trademark, or brand name be- yond an identification which is reasonably related to the use of such service or property in such broadcast or such program.

(g) Any person who violates any provision of this section shall, for each such violation, be fined not more than $10,000 or impris- oned not more than one year, or both. SEC. 508. ø47 U.S.C. 509¿ PROHIBITED PRACTICES IN CASE OF CON-

TESTS OF INTELLECTUAL KNOWLEDGE, INTELLECTUAL SKILL, OR CHANCE.

(a) It shall be unlawful for any person, with intent to deceive the listening or viewing public—

(1) To supply to any contestant in a purportedly bona fide contest of intellectual knowledge or intellectual skill any spe- cial and secret assistance whereby the outcome of such contest will be in whole or in part prearranged or predetermined.

(2) By means of persuasion, bribery, intimidation, or other- wise, to induce or cause any contestant in a purportedly bona fide contest of intellectual knowledge or intellectual skill to re- frain in any manner from using or displaying his knowledge or skill in such contest, whereby the outcome thereof will be in whole or in part prearranged or predetermined.

(3) To engage in any artifice or scheme for the purpose of prearranging or predetermining in whole or in part the out-

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304Sec. 510 COMMUNICATIONS ACT OF 1934

1 Public Law 96–507, 94 Stat. 2747, Dec. 8, 1980, struck out sec. 506 and redesignated secs. 507–509 as secs. 506–508, respectively.

come of a purportedly bona fide contest of intellectual knowl- edge, intellectual skill, or chance.

(4) To produce or participate in the production for broad- casting of, to broadcast or participate in the broadcasting of, to offer to a licensee for broadcasting, or to sponsor, any radio program, knowing or having reasonable ground for believing that, in connection with a purportedly bona fide contest of intellectual knowledge, intellectual skill, or chance constituting any part of such program, any person has done or is going to do any act or thing referred to in paragraph (1), (2), or (3) of this subsection.

(5) To conspire with any other person or persons to do any act or thing prohibited by paragraph (1), (2), (3), or (4) of this subsection, if one or more of such persons do any act to effect the object of such conspiracy. (b) For the purpose of this section—

(1) The term ‘‘contest’’ means any contest broadcast by a radio station in connection with which any money or any other thing of value is offered as a prize or prizes to be paid or pre- sented by the program sponsor or by any other person or per- sons, as announced in the course of the broadcast.

(2) The term ‘‘the listening or viewing public’’ means those members of the public who, with the aid of radio receiving sets, listen to or view programs broadcast by radio stations. (c) Whoever violates subsection (a) shall be fined not more than

$10,000 or imprisoned not more than one year, or both. øSEC. 509¿ 1

SEC. 510. ø47 U.S.C. 510¿ FORFEITURE OF COMMUNICATIONS DEVICES. (a) Any electronic, electromagnetic, radio frequency, or similar

device, or component thereof, used, sent, carried, manufactured, as- sembled, possessed, offered for sale, sold, or advertised with willful and knowing intent to violate section 301 or 302, or rules pre- scribed by the Commission under such sections, may be seized and forfeited to the United States.

(b) Any property subject to forfeiture to the United States under this section may be seized by the Attorney General of the United States upon process issued pursuant to the supplemental rules for certain admiralty and maritime claims by any district court of the United States having jurisdiction over the property, ex- cept that seizure without such process may be made if the seizure is incident to a lawful arrest or search.

(c) All provisions of law relating to— (1) the seizure, summary and judicial forfeiture, and con-

demnation of property for violation of the customs laws; (2) the disposition of such property or the proceeds from

the sale thereof; (3) the remission or mitigation of such forfeitures; and (4) the compromise of claims with respect to such forfeit-

ures; shall apply to seizures and forfeitures incurred, or alleged to

have been incurred, under the provisions of this section, insofar as

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305 Sec. 602COMMUNICATIONS ACT OF 1934

1 Title VI of the Communications Act of 1934 was added by the Cable Communications Policy Act of 1984, Public Law 98–549, 98 Stat. 2780, Oct. 30, 1984. That Act also contained the fol- lowing provisions:

JURISDICTION

SEC. 13. (a) * * * (b) The provisions of this Act and amendments made by this Act shall not be construed to

affect any jurisdiction the Federal Communications Commission may have under the Commu- nications Act of 1934 with respect to any communication by wire or radio (other than cable serv- ice, as defined in section 602(5) of such Act) which is provided through a cable system, or per- sons or facilities engaged in such communications.

* * * * * * *

EFFECTIVE DATE

SEC. 19. * * * (b) Nothing in section 623 or 624 of the Communications Act of 1934, as added by this Act,

shall be construed to allow a franchising authority, or a State or any political subdivision of a State, to require a cable operator to restore, retier, or reprice any cable service which was lawfully eliminated, retiered, or repriced as of September 26, 1984.

applicable and not inconsistent with the provisions of this section, except that such seizures and forfeitures shall be limited to the communications device, devices, or components thereof.

(d) Whenever property is forfeited under this section, the At- torney General of the United States may forward it to the Commis- sion or sell any forfeited property which is not harmful to the public. The proceeds from any such sale shall be deposited in the general fund of the Treasury of the United States.

TITLE VI—CABLE COMMUNICATIONS 1

PART I—GENERAL PROVISIONS

SEC. 601. ø47 U.S.C. 521¿ PURPOSES. The purposes of this title are to—

(1) establish a national policy concerning cable communica- tions;

(2) establish franchise procedures and standards which en- courage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community;

(3) establish guidelines for the exercise of Federal, State, and local authority with respect to the regulation of cable sys- tems;

(4) assure that cable communications provide and are en- couraged to provide the widest possible diversity of information sources and services to the public;

(5) establish an orderly process for franchise renewal which protects cable operators against unfair denials of re- newal where the operator’s past performance and proposal for future performance meet the standards established by this title; and

(6) promote competition in cable communications and mini- mize unnecessary regulation that would impose an undue eco- nomic burden on cable systems.

SEC. 602. ø47 U.S.C. 522¿ DEFINITIONS. For purposes of this title—

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1 This compilation reflects the amendment made by section 302(b)(2)(A) of P.L. 104–104 (110 Stat. 124), even though that amendment strikes ‘‘, or (D)’’ rather than the ‘‘; or (D)’’ that appears in the law.

(1) the term ‘‘activated channels’’ means those channels engineered at the headend of a cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use;

(2) the term ‘‘affiliate’’, when used in relation to any per- son, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person;

(3) the term ‘‘basic cable service’’ means any service tier which includes the retransmission of local television broadcast signals;

(4) the terms ‘‘cable channel’’ or ‘‘channel’’ means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation);

(5) the term ‘‘cable operator’’ means any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a signifi- cant interest in such cable system, or (B) who otherwise con- trols or is responsible for, through any arrangement, the man- agement and operation of such a cable system;

(6) the term ‘‘cable service’’ means— (A) the one-way transmission to subscribers of (i) video

programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for

the selection or use of such video programming or other programming service; (7) the term ‘‘cable system’’ means a facility, consisting of

a set of closed transmission paths and associated signal gen- eration, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves subscribers with- out using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of this Act, except that such facility shall be consid- ered a cable system (other than for purposes of section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) 1 an open video system that complies with section 653 of this title; or (E) any facilities of any electric utility used solely for oper- ating its electric utility systems;

(8) the term ‘‘Federal agency’’ means any agency of the United States, including the Commission;

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(9) the term ‘‘franchise’’ means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to section 626), issued by a fran- chising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system;

(10) the term ‘‘franchising authority’’ means any govern- mental entity empowered by Federal, State, or local law to grant a franchise;

(11) the term ‘‘grade B contour’’ means the field strength of a television broadcast station computed in accordance with regulations promulgated by the Commission;

(12) the term ‘‘interactive on-demand services’’ means a service providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming provider;

(13) the term ‘‘multichannel video programming dis- tributor’’ means a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a di- rect broadcast satellite service, or a television receive-only sat- ellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video pro- gramming;

(14) the term ‘‘other programming service’’ means informa- tion that a cable operator makes available to all subscribers generally;

(15) the term ‘‘person’’ means an individual, partnership, association, joint stock company, trust, corporation, or govern- mental entity;

(16) the term ‘‘public, educational, or governmental access facilities’’ means—

(A) channel capacity designated for public, edu- cational, or governmental use; and

(B) facilities and equipment for the use of such chan- nel capacity; (17) the term ‘‘service tier’’ means a category of cable serv-

ice or other services provided by a cable operator and for which a separate rate is charged by the cable operator;

(18) the term ‘‘State’’ means any State, or political subdivi- sion, or agency thereof;

(19) the term ‘‘usable activated channels’’ means activated channels of a cable system, except those channels whose use for the distribution of broadcast signals would conflict with technical and safety regulations as determined by the Commis- sion; and

(20) the term ‘‘video programming’’ means programming provided by, or generally considered comparable to program- ming provided by, a television broadcast station.

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PART II—USE OF CABLE CHANNELS AND CABLE OWNERSHIP RESTRICTIONS

SEC. 611. ø47 U.S.C. 531¿ CABLE CHANNELS FOR PUBLIC, EDU- CATIONAL, OR GOVERNMENTAL USE.

(a) A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use only to the extent pro- vided in this section.

(b) A franchising authority may in its request for proposals re- quire as part of a franchise, and may require as part of a cable op- erator’s proposal for a franchise renewal, subject to section 626, that channel capacity be designated for public, educational, or gov- ernmental use, and channel capacity on institutional networks be designated for educational or governmental use, and may require rules and procedures for the use of the channel capacity designated pursuant to this section.

(c) A franchising authority may enforce any requirement in any franchise regarding the providing or use of such channel capacity. Such enforcement authority includes the authority to enforce any provisions of the franchise for services, facilities, or equipment pro- posed by the cable operator which relate to public, educational, or governmental use of channel capacity, whether or not required by the franchising authority pursuant to subsection (b).

(d) In the case of any franchise under which channel capacity is designated under subsection (b), the franchising authority shall prescribe—

(1) rules and procedures under which the cable operator is permitted to use such channel capacity for the provision of other services if such channel capacity is not being used for the purposes designated, and

(2) rules and procedures under which such permitted use shall cease. (e) Subject to section 624(d), a cable operator shall not exercise

any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, in- decency, or nudity.

(f) For purposes of this section, the term ‘‘institutional net- work’’ means a communication network which is constructed or op- erated by the cable operator and which is generally available only to subscribers who are not residential subscribers. SEC. 612. ø47 U.S.C. 532¿ CABLE CHANNELS FOR COMMERCIAL USE.

(a) The purpose of this section is to promote competition in the delivery of diverse sources of video programming and to assure that the widest possible diversity of information sources are made avail- able to the public from cable systems in a manner consistent with growth and development of cable systems.

(b)(1) A cable operator shall designate channel capacity for commercial use by persons unaffiliated with the operator in accord- ance with the following requirements:

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(A) An operator of any cable system with 36 or more (but not more than 54) activated channels shall designate 10 per- cent of such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation.

(B) An operator of any cable system with 55 or more (but not more than 100) activated channels shall designate 15 per- cent of such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation.

(C) An operator of any cable system with more than 100 activated channels shall designate 15 percent of all such chan- nels.

(D) An operator of any cable system with fewer than 36 ac- tivated channels shall not be required to designate channel ca- pacity for commercial use by persons unaffiliated with the op- erator, unless the cable system is required to provide such channel capacity under the terms of a franchise in effect on the date of the enactment of this title.

(E) An operator of any cable system in operation on the date of the enactment of this title shall not be required to re- move any service actually being provided on July 1, 1984, in order to comply with this section, but shall make channel ca- pacity available for commercial use as such capacity becomes available until such time as the cable operator is in full compli- ance with this section. (2) Any Federal agency, State, or franchising authority may

not require any cable system to designate channel capacity for com- mercial use by unaffiliated persons in excess of the capacity speci- fied in paragraph (1), except as otherwise provided in this section.

(3) A cable operator may not be required, as part of a request for proposals or as part of a proposal for renewal, subject to section 626, to designate channel capacity for any use (other than commer- cial use by unaffiliated persons under this section) except as pro- vided in sections 611 and 637, but a cable operator may offer in a franchise, or proposal for renewal thereof, to provide, consistent with applicable law, such capacity for other than commercial use by such persons.

(4) A cable operator may use any unused channel capacity des- ignated pursuant to this section until the use of such channel ca- pacity is obtained, pursuant to a written agreement, by a person unaffiliated with the operator.

(5) For the purposes of this section, the term ‘‘commercial use’’ means the provision of video programming, whether or not for prof- it.

(6) Any channel capacity which has been designated for public, educational, or governmental use may not be considered as des- ignated under this section for commercial use for purpose of this section.

(c)(1) If a person unaffiliated with the cable operator seeks to use channel capacity designated pursuant to subsection (b) for com- mercial use, the cable operator shall establish, consistent with the purpose of this section and with rules prescribed by the Commis- sion under paragraph (4), the price, terms, and conditions of such

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use which are at least sufficient to assure that such use will not adversely affect the operation, financial condition, or market devel- opment of the cable system.

(2) A cable operator shall not exercise any editorial control over any video programming provided pursuant to this section, or in any other way consider the content of such programming, except that a cable operator may refuse to transmit any leased access program or portion of a leased access program which contains obscenity, in- decency, or nudity and may consider such content to the minimum extent necessary to establish a reasonable price for the commercial use of designated channel capacity by an unaffiliated person.

(3) Any cable system channel designated in accordance with this section shall not be used to provide a cable service that is being provided over such system on the date of the enactment of this title, if the provision of such programming is intended to avoid the purpose of this section.

(4)(A) The Commission shall have the authority to— (i) determine the maximum reasonable rates that a cable

operator may establish pursuant to paragraph (1) for commer- cial use of designated channel capacity, including the rate charged for the billing of rates to subscribers and for the collec- tion of revenue from subscribers by the cable operator for such use;

(ii) establish reasonable terms and conditions for such use, including those for billing and collection; and

(iii) establish procedures for the expedited resolution of disputes concerning rates or carriage under this section. (B) Within 180 days after the date of enactment of this para-

graph, the Commission shall establish rules for determining max- imum reasonable rates under subparagraph (A)(i), for establishing terms and conditions under subparagraph (A)(ii), and for providing procedures under subparagraph (A)(iii).

(d) Any person aggrieved by the failure or refusal of a cable op- erator to make channel capacity available for use pursuant to this section may bring an action in the district court of the United States for the judicial district in which the cable system is located to compel that such capacity be made available. If the court finds that the channel capacity sought by such person has not been made available in accordance with this section, or finds that the price, terms, or conditions established by the cable operator are unrea- sonable, the court may order such system to make available to such person the channel capacity sought, and further determine the ap- propriate price, terms, or conditions for such use consistent with subsection (c), and may award actual damages if it deems such re- lief appropriate. In any such action, the court shall not consider any price, term, or condition established between an operator and an affiliate for comparable services.

(e)(1) Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available pursuant to this sec- tion may petition the Commission for relief under this subsection upon a showing of prior adjudicated violations of this section. Records of previous adjudications resulting in a court determina- tion that the operator has violated this section shall be considered as sufficient for the showing necessary under this subsection. If the

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Commission finds that the channel capacity sought by such person has not been made available in accordance with this section, or that the price, terms, or conditions established by such system are unreasonable under subsection (c), the Commission shall, by rule or order, require such operator to make available such channel ca- pacity under price, terms, and conditions consistent with subsection (c).

(2) In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations by an operator, the Commission may also es- tablish any further rule or order necessary to assure that the oper- ator provides the diversity of information sources required by this section.

(3) In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or prac- tice of violations by any person who is an operator of more than one cable system, the Commission may also establish any further rule or order necessary to assure that such person provides the di- versity of information sources required by this section.

(f) In any action brought under this section in any Federal dis- trict court or before the Commission, there shall be a presumption that the price, terms, and conditions for use of channel capacity designated pursuant to subsection (b) are reasonable and in good faith unless shown by clear and convincing evidence to the con- trary.

(g) Notwithstanding sections 621(c) and 623(a), at such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are sub- scribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising au- thorities under this title.

(h) Any cable service offered pursuant to this section shall not be provided, or shall be provided subject to conditions, if such cable service in the judgment of the franchising authority or the cable operator is obscene, or is in conflict with community standards in that it is lewd, lascivious, filthy, or indecent or is otherwise unpro- tected by the Constitution of the United States. This subsection shall permit a cable operator to enforce prospectively a written and published policy of prohibiting programming that the cable oper- ator reasonably believes describes or depicts sexual or excretory ac- tivities or organs in a patently offensive manner as measured by contemporary community standards.

(i)(1) Notwithstanding the provisions of subsections (b) and (c), a cable operator required by this section to designate channel ca- pacity for commercial use may use any such channel capacity for the provision of programming from a qualified minority program- ming source or from any qualified educational programming source, whether or not such source is affiliated with the cable operator. The channel capacity used to provide programming from a qualified minority programming source or from any qualified educational programming source pursuant to this subsection may not exceed 33

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312Sec. 613 COMMUNICATIONS ACT OF 1934

percent of the channel capacity designated pursuant to this section. No programming provided over a cable system on July 1, 1990, may qualify as minority programming or educational programming on that cable system under this subsection.

(2) For purposes of this subsection, the term ‘‘qualified minor- ity programming source’’ means a programming source which de- votes substantially all of its programming to coverage of minority viewpoints, or to programming directed at members of minority groups, and which is over 50 percent minority-owned, as the term ‘‘minority’’ is defined in section 309(i)(3)(C)(ii).

(3) For purposes of this subsection, the term ‘‘qualified edu- cational programming source’’ means a programming source which devotes substantially all of its programming to educational or in- structional programming that promotes public understanding of mathematics, the sciences, the humanities, and the arts and has a documented annual expenditure on programming exceeding $15,000,000. The annual expenditure on programming means all annual costs incurred by the programming source to produce or ac- quire programs which are scheduled to be televised, and specifi- cally excludes marketing, promotion, satellite transmission and operational costs, and general administrative costs.

(4) Nothing in this subsection shall substitute for the require- ments to carry qualified noncommercial educational television sta- tions as specified under section 615.

(j)(1) Within 120 days following the date of the enactment of this subsection, the Commission shall promulgate regulations de- signed to limit the access of children to indecent programming, as defined by Commission regulations, and which cable operators have not voluntarily prohibited under subsection (h) by—

(A) requiring cable operators to place on a single channel all indecent programs, as identified by program providers, in- tended for carriage on channels designated for commercial use under this section;

(B) requiring cable operators to block such single channel unless the subscriber requests access to such channel in writ- ing; and

(C) requiring programmers to inform cable operators if the program would be indecent as defined by Commission regula- tions. (2) Cable operators shall comply with the regulations promul-

gated pursuant to paragraph (1). SEC. 613. ø47 U.S.C. 533¿ OWNERSHIP RESTRICTIONS.

(a) It shall be unlawful for a cable operator to hold a license for multichannel multipoint distribution service, or to offer satellite master antenna television service separate and apart from any franchised cable service, in any portion of the franchise area served by that cable operator’s cable system. The Commission—

(1) shall waive the requirements of this paragraph for all existing multichannel multipoint distribution services and sat- ellite master antenna television services which are owned by a cable operator on the date of enactment of this paragraph;

(2) may waive the requirements of this paragraph to the extent the Commission determines is necessary to ensure that

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all significant portions of a franchise area are able to obtain video programming; and

(3) shall not apply the requirements of this subsection to any cable operator in any franchise area in which a cable oper- ator is subject to effective competition as determined under section 623(l). øSubsection (b) repealed by section 302(b)(1) of the Tele-

communications Act of 1996 (P.L. 104–104), 110 Stat. 124.¿ (c) The Commission may prescribe rules with respect to the

ownership or control of cable systems by persons who own or con- trol other media of mass communications which serve the same community served by a cable system.

(d) Any State or franchising authority may not prohibit the ownership or control of a cable system by any person because of such person’s ownership or control of any other media of mass com- munications or other media interests. Nothing in this section shall be construed to prevent any State or franchising authority from prohibiting the ownership or control of a cable system in a jurisdic- tion by any person (1) because of such person’s ownership or con- trol of any other cable system in such jurisdiction; or (2) in cir- cumstances in which the State or franchising authority determines that the acquisition of such a cable system may eliminate or reduce competition in the delivery of cable service in such jurisdiction.

(e)(1) Subject to paragraph (2), a State or franchising authority may hold any ownership interest in any cable system.

(2) Any State or franchising authority shall not exercise any editorial control regarding the content of any cable service on a cable system in which such governmental entity holds ownership interest (other than programming on any channel designated for educational or governmental use), unless such control is exercised through an entity separate from the franchising authority.

(f)(1) In order to enhance effective competition, the Commission shall, within one year after the date of enactment of the Cable Tel- evision Consumer Protection and Competition Act of 1992, conduct a proceeding—

(A) to prescribe rules and regulations establishing reason- able limits on the number of cable subscribers a person is au- thorized to reach through cable systems owned by such person, or in which such person has an attributable interest;

(B) to prescribe rules and regulations establishing reason- able limits on the number of channels on a cable system that can be occupied by a video programmer in which a cable oper- ator has an attributable interest; and

(C) to consider the necessity and appropriateness of impos- ing limitations on the degree to which multichannel video pro- gramming distributors may engage in the creation or produc- tion of video programming. (2) In prescribing rules and regulations under paragraph (1),

the Commission shall, among other public interest objectives— (A) ensure that no cable operator or group of cable opera-

tors can unfairly impede, either because of the size of any indi- vidual operator or because of joint actions by a group of opera-

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tors of sufficient size, the flow of video programming from the video programmer to the consumer;

(B) ensure that cable operators affiliated with video pro- grammers do not favor such programmers in determining car- riage on their cable systems or do not unreasonably restrict the flow of the video programming of such programmers to other video distributors;

(C) take particular account of the market structure, owner- ship patterns, and other relationships of the cable television in- dustry, including the nature and market power of the local franchise, the joint ownership of cable systems and video pro- grammers, and the various types of non-equity controlling in- terests;

(D) account for any efficiencies and other benefits that might be gained through increased ownership or control;

(E) make such rules and regulations reflect the dynamic nature of the communications marketplace;

(F) not impose limitations which would bar cable operators from serving previously unserved rural areas; and

(G) not impose limitations which would impair the devel- opment of diverse and high quality video programming. (g) This section shall not apply to prohibit any combination of

any interests held by any person on July 1, 1984, to the extent of the interests so held as of such date, if the holding of such interests was not inconsistent with any applicable Federal or State law or regulations in effect on that date.

(h) For purposes of this section, the term ‘‘media of mass com- munications’’ shall have the meaning given such term under sec- tion 309(i)(3)(C)(i) of this Act. SEC. 614. ø47 U.S.C. 534¿ CARRIAGE OF LOCAL COMMERCIAL TELE-

VISION SIGNALS. (a) CARRIAGE OBLIGATIONS.—Each cable operator shall carry,

on the cable system of that operator, the signals of local commer- cial television stations and qualified low power stations as provided by this section. Carriage of additional broadcast television signals on such system shall be at the discretion of such operator, subject to section 325(b).

(b) SIGNALS REQUIRED.— (1) IN GENERAL.—(A) A cable operator of a cable system

with 12 or fewer usable activated channels shall carry the sig- nals of at least three local commercial television stations, ex- cept that if such a system has 300 or fewer subscribers, it shall not be subject to any requirements under this section so long as such system does not delete from carriage by that system any signal of a broadcast television station.

(B) A cable operator of a cable system with more than 12 usable activated channels shall carry the signals of local com- mercial television stations, up to one-third of the aggregate number of usable activated channels of such system.

(2) SELECTION OF SIGNALS.—Whenever the number of local commercial television stations exceeds the maximum number of signals a cable system is required to carry under paragraph (1), the cable operator shall have discretion in selecting which such stations shall be carried on its cable system, except that—

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(A) under no circumstances shall a cable operator carry a qualified low power station in lieu of a local com- mercial television station; and

(B) if the cable operator elects to carry an affiliate of a broadcast network (as such term is defined by the Com- mission by regulation), such cable operator shall carry the affiliate of such broadcast network whose city of license reference point, as defined in section 76.53 of title 47, Code of Federal Regulations (in effect on January 1, 1991), or any successor regulation thereto, is closest to the principal headend of the cable system. (3) CONTENT TO BE CARRIED.—(A) A cable operator shall

carry in its entirety, on the cable system of that operator, the primary video, accompanying audio, and line 21 closed caption transmission of each of the local commercial television stations carried on the cable system and, to the extent technically fea- sible, program-related material carried in the vertical blanking interval or on subcarriers. Retransmission of other material in the vertical blanking internal or other nonprogram-related ma- terial (including teletext and other subscription and advertiser- supported information services) shall be at the discretion of the cable operator. Where appropriate and feasible, operators may delete signal enhancements, such as ghost-canceling, from the broadcast signal and employ such enhancements at the system headend or headends.

(B) The cable operator shall carry the entirety of the pro- gram schedule of any television station carried on the cable system unless carriage of specific programming is prohibited, and other programming authorized to be substituted, under section 76.67 or subpart F of part 76 of title 47, Code of Fed- eral Regulations (as in effect on January 1, 1991), or any suc- cessor regulations thereto.

(4) SIGNAL QUALITY.— (A) NONDEGRADATION; TECHNICAL SPECIFICATIONS.—

The signals of local commercial television stations that a cable operator carries shall be carried without material degradation. The Commission shall adopt carriage stand- ards to ensure that, to the extent technically feasible, the quality of signal processing and carriage provided by a cable system for the carriage of local commercial television stations will be no less than that provided by the system for carriage of any other type of signal.

(B) ADVANCED TELEVISION.—At such time as the Com- mission prescribes modifications of the standards for tele- vision broadcast signals, the Commission shall initiate a proceeding to establish any changes in the signal carriage requirements of cable television systems necessary to en- sure cable carriage of such broadcast signals of local com- mercial television stations which have been changed to conform with such modified standards. (5) DUPLICATION NOT REQUIRED.—Notwithstanding para-

graph (1), a cable operator shall not be required to carry the signal of any local commercial television station that substan- tially duplicates the signal of another local commercial tele-

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vision station which is carried on its cable system, or to carry the signals of more than one local commercial television station affiliated with a particular broadcast network (as such term is defined by regulation). If a cable operator elects to carry on its cable system a signal which substantially duplicates the signal of another local commercial television station carried on the cable system, or to carry on its system the signals of more than one local commercial television station affiliated with a par- ticular broadcast network, all such signals shall be counted toward the number of signals the operator is required to carry under paragraph (1).

(6) CHANNEL POSITIONING.—Each signal carried in fulfill- ment of the carriage obligations of a cable operator under this section shall be carried on the cable system channel number on which the local commercial television station is broadcast over the air, or on the channel on which it was carried on July 19, 1985, or on the channel on which it was carried on January 1, 1992, at the election of the station, or on such other channel number as is mutually agreed upon by the station and the cable operator. Any dispute regarding the positioning of a local commercial television station shall be resolved by the Commission.

(7) SIGNAL AVAILABILITY.—Signals carried in fulfillment of the requirements of this section shall be provided to every sub- scriber of a cable system. Such signals shall be viewable via cable on all television receivers of a subscriber which are con- nected to a cable system by a cable operator or for which a cable operator provides a connection. If a cable operator au- thorizes subscribers to install additional receiver connections, but does not provide the subscriber with such connections, or with the equipment and materials for such connections, the op- erator shall notify such subscribers of all broadcast stations carried on the cable system which cannot be viewed via cable without a converter box and shall offer to sell or lease such a converter box to such subscribers at rates in accordance with section 623(b)(3).

(8) IDENTIFICATION OF SIGNALS CARRIED.—A cable operator shall identify, upon request by any person, the signals carried on its system in fulfillment of the requirements of this section.

(9) NOTIFICATION.—A cable operator shall provide written notice to a local commercial television station at least 30 days prior to either deleting from carriage or repositioning that sta- tion. No deletion or repositioning of a local commercial tele- vision station shall occur during a period in which major tele- vision ratings services measure the size of audiences of local television stations. The notification provisions of this para- graph shall not be used to undermine or evade the channel po- sitioning or carriage requirements imposed upon cable opera- tors under this section.

(10) COMPENSATION FOR CARRIAGE.—A cable operator shall not accept or request monetary payment or other valuable con- sideration in exchange either for carriage of local commercial television stations in fulfillment of the requirements of this

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section or for the channel positioning rights provided to such stations under this section, except that—

(A) any such station may be required to bear the costs associated with delivering a good quality signal or a baseband video signal to the principal headend of the cable system;

(B) a cable operator may accept payments from sta- tions which would be considered distant signals under sec- tion 111 of title 17, United States Code, as indemnification for any increased copyright liability resulting from car- riage of such signal; and

(C) a cable operator may continue to accept monetary payment or other valuable consideration in exchange for carriage or channel positioning of the signal of any local commercial television station carried in fulfillment of the requirements of this section, through, but not beyond, the date of expiration of an agreement thereon between a cable operator and a local commercial television station entered into prior to June 26, 1990.

(c) LOW POWER STATION CARRIAGE OBLIGATION.— (1) REQUIREMENT.—If there are not sufficient signals of

full power local commercial television stations to fill the chan- nels set aside under subsection (b)—

(A) a cable operator of a cable system with a capacity of 35 or fewer usable activated channels shall be required to carry one qualified low power station; and

(B) a cable operator of a cable system with a capacity of more than 35 usable activated channels shall be re- quired to carry two qualified low power stations. (2) USE OF PUBLIC, EDUCATIONAL, OR GOVERNMENTAL

CHANNELS.—A cable operator required to carry more than one signal of a qualified low power station under this subsection may do so, subject to approval by the franchising authority pursuant to section 611, by placing such additional station on public, educational, or governmental channels not in use for their designated purposes. (d) REMEDIES.—

(1) COMPLAINTS BY BROADCAST STATIONS.—Whenever a local commercial television station believes that a cable oper- ator has failed to meet its obligations under this section, such station shall notify the operator, in writing, of the alleged fail- ure and identify its reasons for believing that the cable oper- ator is obligated to carry the signal of such station or has oth- erwise failed to comply with the channel positioning or repo- sitioning or other requirements of this section. The cable oper- ator shall, within 30 days of such written notification, respond in writing to such notification and either commence to carry the signal of such station in accordance with the terms re- quested or state its reasons for believing that it is not obligated to carry such signal or is in compliance with the channel posi- tioning and repositioning and other requirements of this sec- tion. A local commercial television station that is denied car- riage or channel positioning or repositioning in accordance with this section by a cable operator may obtain review of such

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denial by filing a complaint with the Commission. Such com- plaint shall allege the manner in which such cable operator has failed to meet its obligations and the basis for such allega- tions.

(2) OPPORTUNITY TO RESPOND.—The Commission shall af- ford such cable operator an opportunity to present data and ar- guments to establish that there has been no failure to meet its obligations under this section.

(3) REMEDIAL ACTIONS; DISMISSAL.—Within 120 days after the date a complaint is filed, the Commission shall determine whether the cable operator has met its obligations under this section. If the Commission determines that the cable operator has failed to meet such obligations, the Commission shall order the cable operator to reposition the complaining station or, in the case of an obligation to carry a station, to commence car- riage of the station and to continue such carriage for at least 12 months. If the Commission determines that the cable oper- ator has fully met the requirements of this section, it shall dis- miss the complaint. (e) INPUT SELECTOR SWITCH RULES ABOLISHED.—No cable op-

erator shall be required— (1) to provide or make available any input selector switch

as defined in section 76.5(mm) of title 47, Code of Federal Reg- ulations, or any comparable device; or

(2) to provide information to subscribers about input selec- tor switches or comparable devices. (f) REGULATIONS BY COMMISSION.—Within 180 days after the

date of enactment of this section, the Commission shall, following a rulemaking proceeding, issue regulations implementing the re- quirements imposed by this section. Such implementing regulations shall include necessary revisions to update section 76.51 of title 47 of the Code of Federal Regulations.

(g) SALES PRESENTATIONS AND PROGRAM LENGTH COMMER- CIALS.—

(1) CARRIAGE PENDING PROCEEDING.—Pending the outcome of the proceeding under paragraph (2), nothing in this Act shall require a cable operator to carry on any tier, or prohibit a cable operator from carrying on any tier, the signal of any commercial television station or video programming service that is predominantly utilized for the transmission of sales presentations or program length commercials.

(2) PROCEEDING CONCERNING CERTAIN STATIONS.—Within 270 days after the date of enactment of this section, the Com- mission, notwithstanding prior proceedings to determine whether broadcast television stations that are predominantly utilized for the transmission of sales presentations or program length commercials are serving the public interest, conven- ience, and necessity, shall complete a proceeding in accordance with this paragraph to determine whether broadcast television stations that are predominantly utilized for the transmission of sales presentations or program length commercials are serving the public interest, convenience, and necessity. In conducting such proceeding, the Commission shall provide appropriate no- tice and opportunity for public comment. The Commission shall

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consider the viewing of such stations, the level of competing demands for the spectrum allocated to such stations, and the role of such stations in providing competition to nonbroadcast services offering similar programming. In the event that the Commission concludes that one or more of such stations are serving the public interest, convenience, and necessity, the Commission shall qualify such stations as local commercial tel- evision stations for purposes of subsection (a). In the event that the Commission concludes that one or more of such sta- tions are not serving the public interest, convenience, and ne- cessity, the Commission shall allow the licensees of such sta- tions a reasonable period within which to provide different pro- gramming, and shall not deny such stations a renewal expect- ancy solely because their programming consisted predomi- nantly of sales presentations or program length commercials. (h) DEFINITIONS.—

(1) LOCAL COMMERCIAL TELEVISION STATION.— (A) IN GENERAL.—For purposes of this section, the

term ‘‘local commercial television station’’ means any full power television broadcast station, other than a qualified noncommercial educational television station within the meaning of section 615(l)(1), licensed and operating on a channel regularly assigned to its community by the Com- mission that, with respect to a particular cable system, is within the same television market as the cable system.

(B) EXCLUSIONS.—The term ‘‘local commercial tele- vision station’’ shall not include—

(i) low power television stations, television trans- lator stations, and passive repeaters which operate pursuant to part 74 of title 47, Code of Federal Regu- lations, or any successor regulations thereto;

(ii) a television broadcast station that would be considered a distant signal under section 111 of title 17, United States Code, if such station does not agree to indemnify the cable operator for any increased copy- right liability resulting from carriage on the cable sys- tem; or

(iii) a television broadcast station that does not deliver to the principal headend of a cable system ei- ther a signal level of ¥45dBm for UHF signals or ¥49dBm for VHF signals at the input terminals of the signal processing equipment, if such station does not agree to be responsible for the costs of delivering to the cable system a signal of good quality or a baseband video signal. (C) MARKET DETERMINATIONS.—(i) For purposes of this

section, a broadcasting station’s market shall be deter- mined by the Commission by regulation or order using, where available, commercial publications which delineate television markets based on viewing patterns, except that, following a written request, the Commission may, with re- spect to a particular television broadcast station, include additional communities within its television market or ex- clude communities from such station’s television market to

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1 Margin so in law.

better effectuate the purposes of this section. In consid- ering such requests, the Commission may determine that particular communities are part of more than one tele- vision market.

(ii) In considering requests filed pursuant to clause (i), the Commission shall afford particular attention to the value of localism by taking into account such factors as—

(I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community;

(II) whether the television station provides cov- erage or other local service to such community;

(III) whether any other television station that is eligible to be carried by a cable system in such com- munity in fulfillment of the requirements of this sec- tion provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the commu- nity; and

(IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. (iii) A cable operator shall not delete from carriage the

signal of a commercial television station during the pend- ency of any proceeding pursuant to this subparagraph.

(iv) 1 Within 120 days after the date on which a request is filed under this subparagraph (or 120 days after the date of enactment of the Telecommunications Act of 1996, if later), the Commission shall grant or deny the request.

(2) QUALIFIED LOW POWER STATION.—The term ‘‘qualified low power station’’ means any television broadcast station con- forming to the rules established for Low Power Television Sta- tions contained in part 74 of title 47, Code of Federal Regula- tions, only if—

(A) such station broadcasts for at least the minimum number of hours of operation required by the Commission for television broadcast stations under part 73 of title 47, Code of Federal Regulations;

(B) such station meets all obligations and require- ments applicable to television broadcast stations under part 73 of title 47, Code of Federal Regulations, with re- spect to the broadcast of nonentertainment programming; programming and rates involving political candidates, elec- tion issues, controversial issues of public importance, edi- torials, and personal attacks; programming for children; and equal employment opportunity; and the Commission determines that the provision of such programming by such station would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic dis-

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tance of such full power stations from the low power sta- tion’s community of license;

(C) such station complies with interference regulations consistent with its secondary status pursuant to part 74 of title 47, Code of Federal Regulations;

(D) such station is located no more than 35 miles from the cable system’s headend, and delivers to the principal headend of the cable system an over-the-air signal of good quality, as determined by the Commission;

(E) the community of license of such station and the franchise area of the cable system are both located outside of the largest 160 Metropolitan Statistical Areas, ranked by population, as determined by the Office of Management and Budget on June 30, 1990, and the population of such community of license on such date did not exceed 35,000; and

(F) there is no full power television broadcast station licensed to any community within the county or other po- litical subdivision (of a State) served by the cable system.

Nothing in this paragraph shall be construed to change the secondary status of any low power station as provided in part 74 of title 47, Code of Federal Regulations, as in effect on the date of enactment of this section.

SEC. 615. ø47 U.S.C. 535¿ CARRIAGE OF NONCOMMERCIAL EDU- CATIONAL TELEVISION.

(a) CARRIAGE OBLIGATIONS.—In addition to the carriage re- quirements set forth in section 614, each cable operator of a cable system shall carry the signals of qualified noncommercial edu- cational television stations in accordance with the provisions of this section.

(b) REQUIREMENTS TO CARRY QUALIFIED STATIONS.— (1) GENERAL REQUIREMENT TO CARRY EACH QUALIFIED STA-

TION.—Subject to paragraphs (2) and (3) and subsection (e), each cable operator shall carry, on the cable system of that cable operator, any qualified local noncommercial educational television station requesting carriage.

(2)(A) SYSTEMS WITH 12 OR FEWER CHANNELS.—Notwith- standing paragraph (1), a cable operator of a cable system with 12 or fewer usable activated channels shall be required to carry the signal of one qualified local noncommercial edu- cational television station; except that a cable operator of such a system shall comply with subsection (c) and may, in its dis- cretion, carry the signals of other qualified noncommercial edu- cational television stations.

(B) In the case of a cable system described in subpara- graph (A) which operates beyond the presence of any qualified local noncommercial educational television station—

(i) the cable operator shall import and carry on that system the signal of one qualified noncommercial edu- cational television station;

(ii) the selection for carriage of such a signal shall be at the election of the cable operator; and

(iii) in order to satisfy the requirements for carriage specified in this subsection, the cable operator of the sys-

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tem shall not be required to remove any other program- ming service actually provided to subscribers on March 29, 1990; except that such cable operator shall use the first channel available to satisfy the requirements of this sub- paragraph. (3) SYSTEMS WITH 13 TO 36 CHANNELS.—(A) Subject to sub-

section (c), a cable operator of a cable system with 13 to 36 us- able activated channels—

(i) shall carry the signal of at least one qualified local noncommercial educational television station but shall not be required to carry the signals of more than three such stations, and

(ii) may, in its discretion, carry additional such sta- tions. (B) In the case of a cable system described in this para-

graph which operates beyond the presence of any qualified local noncommercial educational television station, the cable operator shall import and carry on that system the signal of at least one qualified noncommercial educational television sta- tion to comply with subparagraph (A)(i).

(C) The cable operator of a cable system described in this paragraph which carries the signal of a qualified local non- commercial educational station affiliated with a State public television network shall not be required to carry the signal of any additional qualified local noncommercial educational tele- vision stations affiliated with the same network if the pro- gramming of such additional stations is substantially dupli- cated by the programming of the qualified local noncommercial educational television station receiving carriage.

(D) A cable operator of a system described in this para- graph which increases the usable activated channel capacity of the system to more than 36 channels on or after March 29, 1990, shall, in accordance with the other provisions of this sec- tion, carry the signal of each qualified local noncommercial educational television station requesting carriage, subject to subsection (e). (c) CONTINUED CARRIAGE OF EXISTING STATIONS.—Notwith-

standing any other provision of this section, all cable operators shall continue to provide carriage to all qualified local noncommer- cial educational television stations whose signals were carried on their systems as of March 29, 1990. The requirements of this sub- section may be waived with respect to a particular cable operator and a particular such station, upon the written consent of the cable operator and the station.

(d) PLACEMENT OF ADDITIONAL SIGNALS.—A cable operator re- quired to add the signals of qualified local noncommercial edu- cational television stations to a cable system under this section may do so, subject to approval by the franchising authority pursu- ant to section 611, by placing such additional stations on public, educational, or governmental channels not in use for their des- ignated purposes.

(e) SYSTEMS WITH MORE THAN 36 CHANNELS.—A cable oper- ator of a cable system with a capacity of more than 36 usable acti- vated channels which is required to carry the signals of three

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qualified local noncommercial educational television stations shall not be required to carry the signals of additional such stations the programming of which substantially duplicates the programming broadcast by another qualified local noncommercial educational tel- evision station requesting carriage. Substantial duplication shall be defined by the Commission in a manner that promotes access to distinctive noncommercial educational television services.

(f) WAIVER OF NONDUPLICATION RIGHTS.—A qualified local non- commercial educational television station whose signal is carried by a cable operator shall not assert any network nonduplication rights it may have pursuant to section 76.92 of title 47, Code of Federal Regulations, to require the deletion of programs aired on other qualified local noncommercial educational television stations whose signals are carried by that cable operator.

(g) CONDITIONS OF CARRIAGE.— (1) CONTENT TO BE CARRIED.—A cable operator shall re-

transmit in its entirety the primary video, accompanying audio, and line 21 closed caption transmission of each qualified local noncommercial educational television station whose sig- nal is carried on the cable system, and, to the extent tech- nically feasible, program-related material carried in the vertical blanking interval, or on subcarriers, that may be nec- essary for receipt of programming by handicapped persons or for educational or language purposes. Retransmission of other material in the vertical blanking interval or on subcarriers shall be within the discretion of the cable operator.

(2) BANDWIDTH AND TECHNICAL QUALITY.—A cable operator shall provide each qualified local noncommercial educational television station whose signal is carried in accordance with this section with bandwidth and technical capacity equivalent to that provided to commercial television broadcast stations carried on the cable system and shall carry the signal of each qualified local noncommercial educational television station without material degradation.

(3) CHANGES IN CARRIAGE.—The signal of a qualified local noncommercial educational television station shall not be repo- sitioned by a cable operator unless the cable operator, at least 30 days in advance of such repositioning, has provided written notice to the station and all subscribers of the cable system. For purposes of this paragraph, repositioning includes (A) as- signment of a qualified local noncommercial educational tele- vision station to a cable system channel number different from the cable system channel number to which the station was as- signed as of March 29, 1990, and (B) deletion of the station from the cable system. The notification provisions of this para- graph shall not be used to undermine or evade the channel po- sitioning or carriage requirements imposed upon cable opera- tors under this section.

(4) GOOD QUALITY SIGNAL REQUIRED.—Notwithstanding the other provisions of this section, a cable operator shall not be required to carry the signal of any qualified local noncommer- cial educational television station which does not deliver to the cable system’s principal headend a signal of good quality or a baseband video signal, as may be defined by the Commission.

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324Sec. 615 COMMUNICATIONS ACT OF 1934

(5) CHANNEL POSITIONING.—Each signal carried in fulfill- ment of the carriage obligations of a cable operator under this section shall be carried on the cable system channel number on which the qualified local noncommercial educational television station is broadcast over the air, or on the channel on which it was carried on July 19, 1985, at the election of the station, or on such other channel number as is mutually agreed upon by the station and the cable operator. Any dispute regarding the positioning of a qualified local noncommercial educational television station shall be resolved by the Commission. (h) AVAILABILITY OF SIGNALS.—Signals carried in fulfillment of

the carriage obligations of a cable operator under this section shall be available to every subscriber as part of the cable system’s lowest priced service tier that includes the retransmission of local com- mercial television broadcast signals.

(i) PAYMENT FOR CARRIAGE PROHIBITED.— (1) IN GENERAL.—A cable operator shall not accept mone-

tary payment or other valuable consideration in exchange for carriage of the signal of any qualified local noncommercial edu- cational television station carried in fulfillment of the require- ments of this section, except that such a station may be re- quired to bear the cost associated with delivering a good qual- ity signal or a baseband video signal to the principal headend of the cable system.

(2) DISTANT SIGNAL EXCEPTION.—Notwithstanding the pro- visions of this section, a cable operator shall not be required to add the signal of a qualified local noncommercial edu- cational television station not already carried under the provi- sion of subsection (c), where such signal would be considered a distant signal for copyright purposes unless such station in- demnifies the cable operator for any increased copyright costs resulting from carriage of such signal. (j) REMEDIES.—

(1) COMPLAINT.—Whenever a qualified local noncommer- cial educational television station believes that a cable operator of a cable system has failed to comply with the signal carriage requirements of this section, the station may file a complaint with the Commission. Such complaint shall allege the manner in which such cable operator has failed to comply with such re- quirements and state the basis for such allegations.

(2) OPPORTUNITY TO RESPOND.—The Commission shall af- ford such cable operator an opportunity to present data, views, and arguments to establish that the cable operator has com- plied with the signal carriage requirements of this section.

(3) REMEDIAL ACTIONS; DISMISSAL.—Within 120 days after the date a complaint is filed under this subsection, the Com- mission shall determine whether the cable operator has com- plied with the requirements of this section. If the Commission determines that the cable operator has failed to comply with such requirements, the Commission shall state with particu- larity the basis for such findings and order the cable operator to take such remedial action as is necessary to meet such re- quirements. If the Commission determines that the cable oper-

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325 Sec. 616COMMUNICATIONS ACT OF 1934

ator has fully complied with such requirements, the Commis- sion shall dismiss the complaint. (k) IDENTIFICATION OF SIGNALS.—A cable operator shall iden-

tify, upon request by any person, those signals carried in fulfill- ment of the requirements of this section.

(l) DEFINITIONS.—For purposes of this section— (1) QUALIFIED NONCOMMERCIAL EDUCATIONAL TELEVISION

STATION.—The term ‘‘qualified noncommercial educational tele- vision station’’ means any television broadcast station which—

(A)(i) under the rules and regulations of the Commis- sion in effect on March 29, 1990, is licensed by the Com- mission as a noncommercial educational television broad- cast station and which is owned and operated by a public agency, nonprofit foundation, corporation, or association; and

(ii) has as its licensee an entity which is eligible to re- ceive a community service grant, or any successor grant thereto, from the Corporation for Public Broadcasting, or any successor organization thereto, on the basis of the for- mula set forth in section 396(k)(6)(B); or

(B) is owned and operated by a municipality and transmits predominantly noncommercial programs for edu- cational purposes.

Such term includes (I) the translator of any noncommercial educational television station with five watts or higher power serving the franchise area, (II) a full-service station or trans- lator if such station or translator is licensed to a channel re- served for noncommercial educational use pursuant to section 73.606 of title 47, Code of Federal Regulations, or any suc- cessor regulations thereto, and (III) such stations and trans- lators operating on channels not so reserved as the Commis- sion determines are qualified as noncommercial educational stations.

(2) QUALIFIED LOCAL NONCOMMERCIAL EDUCATIONAL TELE- VISION STATION.—The term ‘‘qualified local noncommercial edu- cational television station’’ means a qualified noncommercial educational television station—

(A) which is licensed to a principal community whose reference point, as defined in section 76.53 of title 47, Code of Federal Regulations (as in effect on March 29, 1990), or any successor regulations thereto, is within 50 miles of the principal headend of the cable system; or

(B) whose Grade B service contour, as defined in sec- tion 73.683(a) of such title (as in effect on March 29, 1990), or any successor regulations thereto, encompasses the principal headend of the cable system.

SEC. 616. ø47 U.S.C. 536¿ REGULATION OF CARRIAGE AGREEMENTS. (a) REGULATIONS.—Within one year after the date of enactment

of this section, the Commission shall establish regulations gov- erning program carriage agreements and related practices between cable operators or other multichannel video programming distribu- tors and video programming vendors. Such regulations shall—

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(1) include provisions designed to prevent a cable operator or other multichannel video programming distributor from re- quiring a financial interest in a program service as a condition for carriage on one or more of such operator’s systems;

(2) include provisions designed to prohibit a cable operator or other multichannel video programming distributor from co- ercing a video programming vendor to provide, and from retali- ating against such a vendor for failing to provide, exclusive rights against other multichannel video programming distribu- tors as a condition of carriage on a system;

(3) contain provisions designed to prevent a multichannel video programming distributor from engaging in conduct the effect of which is to unreasonably restrain the ability of an un- affiliated video programming vendor to compete fairly by dis- criminating in video programming distribution on the basis of affiliation or nonaffiliation of vendors in the selection, terms, or conditions for carriage of video programming provided by such vendors;

(4) provide for expedited review of any complaints made by a video programming vendor pursuant to this section;

(5) provide for appropriate penalties and remedies for vio- lations of this subsection, including carriage; and

(6) provide penalties to be assessed against any person fil- ing a frivolous complaint pursuant to this section. (b) DEFINITION.—As used in this section, the term ‘‘video pro-

gramming vendor’’ means a person engaged in the production, cre- ation, or wholesale distribution of video programming for sale. SEC. 617. ø47 U.S.C. 537¿ SALES OF CABLE SYSTEMS.

A franchising authority shall, if the franchise requires fran- chising authority approval of a sale or transfer, have 120 days to act upon any request for approval of such sale or transfer that con- tains or is accompanied by such information as is required in ac- cordance with Commission regulations and by the franchising au- thority. If the franchising authority fails to render a final decision on the request within 120 days, such request shall be deemed granted unless the requesting party and the franchising authority agree to an extension of time.

PART III—FRANCHISING AND REGULATION

SEC. 621. ø47 U.S.C. 541¿ GENERAL FRANCHISE REQUIREMENTS. (a)(1) A franchising authority may award, in accordance with

the provisions of this title, 1 or more franchises within its jurisdic- tion; except that a franchising authority may not grant an exclu- sive franchise and may not unreasonably refuse to award an addi- tional competitive franchise. Any applicant whose application for a second franchise has been denied by a final decision of the fran- chising authority may appeal such final decision pursuant to the provisions of section 635 for failure to comply with this subsection.

(2) Any franchise shall be construed to authorize the construc- tion of a cable system over public rights-of-way, and through ease- ments, which is within the area to be served by the cable system

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and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure—

(A) that the safety, functioning, and appearance of the property and the convenience and the safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system;

(B) that the cost of the installation, construction, oper- ation, or removal of such facilities be borne by the cable oper- ator or subscriber, or a combination of both; and

(C) that the owner of the property be justly compensated by the cable operator for any damages caused by the installa- tion, construction, operation, or removal of such facilities by the cable operator. (3) In awarding a franchise or franchises, a franchising author-

ity shall assure that access to cable service is not denied to any group of potential residential cable subscribers because of the in- come of the residents of the local area in which such group resides.

(4) In awarding a franchise, the franchising authority— (A) shall allow the applicant’s cable system a reasonable

period of time to become capable of providing cable service to all households in the franchise area;

(B) may require adequate assurance that the cable oper- ator will provide adequate public, educational, and govern- mental access channel capacity, facilities, or financial support; and

(C) may require adequate assurance that the cable oper- ator has the financial, technical, or legal qualifications to pro- vide cable service. (b)(1) Except to the extent provided in paragraph (2) and sub-

section (f), a cable operator may not provide cable service without a franchise.

(2) Paragraph (1) shall not require any person lawfully pro- viding cable service without a franchise on July 1, 1984, to obtain a franchise unless the franchising authority so requires.

(3)(A) If a cable operator or affiliate thereof is engaged in the provision of telecommunications services—

(i) such cable operator or affiliate shall not be required to obtain a franchise under this title for the provision of tele- communications services; and

(ii) the provisions of this title shall not apply to such cable operator or affiliate for the provision of telecommunications services. (B) A franchising authority may not impose any requirement

under this title that has the purpose or effect of prohibiting, lim- iting, restricting, or conditioning the provision of a telecommuni- cations service by a cable operator or an affiliate thereof.

(C) A franchising authority may not order a cable operator or affiliate thereof—

(i) to discontinue the provision of a telecommunications service, or

(ii) to discontinue the operation of a cable system, to the extent such cable system is used for the provision of a tele- communications service, by reason of the failure of such cable operator or affiliate thereof to obtain a franchise or franchise

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renewal under this title with respect to the provision of such telecommunications service. (D) Except as otherwise permitted by sections 611 and 612, a

franchising authority may not require a cable operator to provide any telecommunications service or facilities, other than institu- tional networks, as a condition of the initial grant of a franchise, a franchise renewal, or a transfer of a franchise.

(c) Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service.

(d)(1) A State or the Commission may require the filing of in- formational tariffs for any intrastate communications service pro- vided by a cable system, other than cable service, that would be subject to regulation by the Commission or any State if offered by a common carrier subject in whole or in part, to title II of this Act. Such informational tariffs shall specify the rates, terms, and condi- tions for the provision of such service, including whether it is made available to all subscribers generally, and shall take effect on the date specified therein.

(2) Nothing in this title shall be construed to affect the author- ity of any State to regulate any cable operator to the extent that such operator provides any communication service other than cable service, whether offered on a common carrier or private contract basis.

(3) For purposes of this subsection, the term ‘‘State’’ has the meaning given it in section 3.

(e) Nothing in this title shall be construed to affect the author- ity of any State to license or otherwise regulate any facility or com- bination of facilities which serves only subscribers in one or more multiple unit dwellings under common ownership, control, or man- agement and which does not use any public right-of-way.

(f) No provision of this Act shall be construed to— (1) prohibit a local or municipal authority that is also, or

is affiliated with, a franchising authority from operating as a multichannel video programming distributor in the franchise area, notwithstanding the granting of one or more franchises by such franchising authority; or

(2) require such local or municipal authority to secure a franchise to operate as a multichannel video programming dis- tributor.

SEC. 622. ø47 U.S.C. 542¿ FRANCHISE FEES. (a) Subject to the limitation of subsection (b), any cable oper-

ator may be required under the terms of any franchise to pay a franchise fee.

(b) For any twelve-month period, the franchise fees paid by a cable operator with respect to any cable system shall not exceed 5 percent of such cable operator’s gross revenues derived in such pe- riod from the operation of the cable system to provide cable serv- ices. For purposes of this section, the 12-month period shall be the 12-month period applicable under the franchise for accounting pur- poses. Nothing in this subsection shall prohibit a franchising au- thority and a cable operator from agreeing that franchise fees which lawfully could be collected for any such 12-month period shall be paid on a prepaid or deferred basis; except that the sum

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329 Sec. 622COMMUNICATIONS ACT OF 1934

of the fees paid during the term of the franchise may not exceed the amount, including the time value of money, which would have lawfully been collected if such fees had been paid per annum.

(c) Each cable operator may identify, consistent with the regu- lations prescribed by the Commission pursuant to section 623, as a separate line item on each regular bill of each subscriber, each of the following:

(1) The amount of the total bill assessed as a franchise fee and the identity of the franchising authority to which the fee is paid.

(2) The amount of the total bill assessed to satisfy any re- quirements imposed on the cable operator by the franchise agreement to support public, educational, or governmental channels or the use of such channels.

(3) The amount of any other fee, tax, assessment, or charge of any kind imposed by any governmental authority on the transaction between the operator and the subscriber. (d) In any court action under subsection (c), the franchising au-

thority shall demonstrate that the rate structure reflects all costs of the franchise fees.

(e) Any cable operator shall pass through to subscribers the amount of any decrease in a franchise fee.

(f) A cable operator may designate that portion of a sub- scriber’s bill attributable to the franchise fee as a separate item on the bill.

(g) For the purposes of this section— (1) the term ‘‘franchise fee’’ includes any tax, fee, or assess-

ment of any kind imposed by a franchising authority or other governmental entity on a cable operator or cable subscriber, or both, solely because of their status as such;

(2) the term ‘‘franchise fee’’ does not include— (A) any tax, fee, or assessment of general applicability

(including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly dis- criminatory against cable operators or cable subscribers);

(B) in the case of any franchise in effect on the date of the enactment of this title, payments which are required by the franchise to be made by the cable operator during the term of such franchise for, or in support of the use of, public, educational, or governmental access facilities;

(C) in the case of any franchise granted after such date of enactment, capital costs which are required by the franchise to be incurred by the cable operator for public, educational, or governmental access facilities;

(D) requirements or charges incidental to the award- ing or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indem- nification, penalties, or liquidated damages; or

(E) any fee imposed under title 17, United States Code.

(h)(1) Nothing in this Act shall be construed to limit any au- thority of a franchising authority to impose a tax, fee, or other as- sessment of any kind on any person (other than a cable operator)

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with respect to cable service or other communications service pro- vided by such person over a cable system for which charges are as- sessed to subscribers but not received by the cable operator.

(2) For any 12-month period, the fees paid by such person with respect to any such cable service or other communications service shall not exceed 5 percent of such person’s gross revenues derived in such period from the provision of such service over the cable sys- tem.

(i) Any Federal agency may not regulate the amount of the franchise fees paid by a cable operator, or regulate the use of funds derived from such fees, except as provided in this section. SEC. 623. ø47 U.S.C. 543¿ REGULATION OF RATES.

(a) COMPETITION PREFERENCE; LOCAL AND FEDERAL REGULA- TION.—

(1) IN GENERAL.—No Federal agency or State may regulate the rates for the provision of cable service except to the extent provided under this section and section 612. Any franchising authority may regulate the rates for the provision of cable service, or any other communications service provided over a cable system to cable subscribers, but only to the extent pro- vided under this section. No Federal agency, State, or fran- chising authority may regulate the rates for cable service of a cable system that is owned or operated by a local government or franchising authority within whose jurisdiction that cable system is located and that is the only cable system located within such jurisdiction.

(2) PREFERENCE FOR COMPETITION.—If the Commission finds that a cable system is subject to effective competition, the rates for the provision of cable service by such system shall not be subject to regulation by the Commission or by a State or franchising authority under this section. If the Commission finds that a cable system is not subject to effective competi- tion—

(A) the rates for the provision of basic cable service shall be subject to regulation by a franchising authority, or by the Commission if the Commission exercises jurisdic- tion pursuant to paragraph (6), in accordance with the reg- ulations prescribed by the Commission under subsection (b); and

(B) the rates for cable programming services shall be subject to regulation by the Commission under subsection (c). (3) QUALIFICATION OF FRANCHISING AUTHORITY.—A fran-

chising authority that seeks to exercise the regulatory jurisdic- tion permitted under paragraph (2)(A) shall file with the Com- mission a written certification that—

(A) the franchising authority will adopt and admin- ister regulations with respect to the rates subject to regu- lation under this section that are consistent with the regu- lations prescribed by the Commission under subsection (b);

(B) the franchising authority has the legal authority to adopt, and the personnel to administer, such regulations; and

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331 Sec. 623COMMUNICATIONS ACT OF 1934

(C) procedural laws and regulations applicable to rate regulation proceedings by such authority provide a reason- able opportunity for consideration of the views of interested parties. (4) APPROVAL BY COMMISSION.—A certification filed by a

franchising authority under paragraph (3) shall be effective 30 days after the date on which it is filed unless the Commission finds, after notice to the authority and a reasonable oppor- tunity for the authority to comment, that—

(A) the franchising authority has adopted or is admin- istering regulations with respect to the rates subject to regulation under this section that are not consistent with the regulations prescribed by the Commission under sub- section (b);

(B) the franchising authority does not have the legal authority to adopt, or the personnel to administer, such regulations; or

(C) procedural laws and regulations applicable to rate regulation proceedings by such authority do not provide a reasonable opportunity for consideration of the views of in- terested parties.

If the Commission disapproves a franchising authority’s certifi- cation, the Commission shall notify the franchising authority of any revisions or modifications necessary to obtain approval.

(5) REVOCATION OF JURISDICTION.—Upon petition by a cable operator or other interested party, the Commission shall review the regulation of cable system rates by a franchising authority under this subsection. A copy of the petition shall be provided to the franchising authority by the person filing the petition. If the Commission finds that the franchising authority has acted inconsistently with the requirements of this sub- section, the Commission shall grant appropriate relief. If the Commission, after the franchising authority has had a reason- able opportunity to comment, determines that the State and local laws and regulations are not in conformance with the reg- ulations prescribed by the Commission under subsection (b), the Commission shall revoke the jurisdiction of such authority.

(6) EXERCISE OF JURISDICTION BY COMMISSION.—If the Commission disapproves a franchising authority’s certification under paragraph (4), or revokes such authority’s jurisdiction under paragraph (5), the Commission shall exercise the fran- chising authority’s regulatory jurisdiction under paragraph (2)(A) until the franchising authority has qualified to exercise that jurisdiction by filing a new certification that meets the re- quirements of paragraph (3). Such new certification shall be ef- fective upon approval by the Commission. The Commission shall act to approve or disapprove any such new certification within 90 days after the date it is filed.

(7) AGGREGATION OF EQUIPMENT COSTS.— (A) IN GENERAL.—The Commission shall allow cable

operators, pursuant to any rules promulgated under sub- section (b)(3), to aggregate, on a franchise, system, re- gional, or company level, their equipment costs into broad categories, such as converter boxes, regardless of the vary-

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332Sec. 623 COMMUNICATIONS ACT OF 1934

ing levels of functionality of the equipment within each such broad category. Such aggregation shall not be per- mitted with respect to equipment used by subscribers who receive only a rate regulated basic service tier.

(B) REVISION TO COMMISSION RULES; FORMS.—Within 120 days of the date of enactment of the Telecommuni- cations Act of 1996, the Commission shall issue revisions to the appropriate rules and forms necessary to implement subparagraph (A).

(b) ESTABLISHMENT OF BASIC SERVICE TIER RATE REGULA- TIONS.—

(1) COMMISSION OBLIGATION TO SUBSCRIBERS.—The Com- mission shall, by regulation, ensure that the rates for the basic service tier are reasonable. Such regulations shall be designed to achieve the goal of protecting subscribers of any cable sys- tem that is not subject to effective competition from rates for the basic service tier that exceed the rates that would be charged for the basic service tier if such cable system were subject to effective competition.

(2) COMMISSION REGULATIONS.—Within 180 days after the date of enactment of the Cable Television Consumer Protection and Competition Act of 1992, the Commission shall prescribe, and periodically thereafter revise, regulations to carry out its obligations under paragraph (1). In prescribing such regula- tions, the Commission—

(A) shall seek to reduce the administrative burdens on subscribers, cable operators, franchising authorities, and the Commission;

(B) may adopt formulas or other mechanisms and pro- cedures in complying with the requirements of subpara- graph (A); and

(C) shall take into account the following factors: (i) the rates for cable systems, if any, that are sub-

ject to effective competition; (ii) the direct costs (if any) of obtaining, transmit-

ting, and otherwise providing signals carried on the basic service tier, including signals and services car- ried on the basic service tier pursuant to paragraph (7)(B), and changes in such costs;

(iii) only such portion of the joint and common costs (if any) of obtaining, transmitting, and otherwise providing such signals as is determined, in accordance with regulations prescribed by the Commission, to be reasonably and properly allocable to the basic service tier, and changes in such costs;

(iv) the revenues (if any) received by a cable oper- ator from advertising from programming that is car- ried as part of the basic service tier or from other con- sideration obtained in connection with the basic serv- ice tier;

(v) the reasonably and properly allocable portion of any amount assessed as a franchise fee, tax, or charge of any kind imposed by any State or local au- thority on the transactions between cable operators

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333 Sec. 623COMMUNICATIONS ACT OF 1934

and cable subscribers or any other fee, tax, or assess- ment of general applicability imposed by a govern- mental entity applied against cable operators or cable subscribers;

(vi) any amount required, in accordance with paragraph (4), to satisfy franchise requirements to support public, educational, or governmental channels or the use of such channels or any other services re- quired under the franchise; and

(vii) a reasonable profit, as defined by the Com- mission consistent with the Commission’s obligations to subscribers under paragraph (1).

(3) EQUIPMENT.—The regulations prescribed by the Com- mission under this subsection shall include standards to estab- lish, on the basis of actual cost, the price or rate for—

(A) installation and lease of the equipment used by subscribers to receive the basic service tier, including a converter box and a remote control unit and, if requested by the subscriber, such addressable converter box or other equipment as is required to access programming described in paragraph (8); and

(B) installation and monthly use of connections for ad- ditional television receivers. (4) COSTS OF FRANCHISE REQUIREMENTS.—The regulations

prescribed by the Commission under this subsection shall in- clude standards to identify costs attributable to satisfying fran- chise requirements to support public, educational, and govern- mental channels or the use of such channels or any other serv- ices required under the franchise.

(5) IMPLEMENTATION AND ENFORCEMENT.—The regulations prescribed by the Commission under this subsection shall in- clude additional standards, guidelines, and procedures con- cerning the implementation and enforcement of such regula- tions, which shall include—

(A) procedures by which cable operators may imple- ment and franchising authorities may enforce the regula- tions prescribed by the Commission under this subsection;

(B) procedures for the expeditious resolution of dis- putes between cable operators and franchising authorities concerning the administration of such regulations;

(C) standards and procedures to prevent unreasonable charges for changes in the subscriber’s selection of services or equipment subject to regulation under this section, which standards shall require that charges for changing the service tier selected shall be based on the cost of such change and shall not exceed nominal amounts when the system’s configuration permits changes in service tier se- lection to be effected solely by coded entry on a computer terminal or by other similarly simple method; and

(D) standards and procedures to assure that sub- scribers receive notice of the availability of the basic serv- ice tier required under this section. (6) NOTICE.—The procedures prescribed by the Commis-

sion pursuant to paragraph (5)(A) shall require a cable oper-

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334Sec. 623 COMMUNICATIONS ACT OF 1934

ator to provide 30 days’ advance notice to a franchising author- ity of any increase proposed in the price to be charged for the basic service tier.

(7) COMPONENTS OF BASIC TIER SUBJECT TO RATE REGULA- TION.—

(A) MINIMUM CONTENTS.—Each cable operator of a cable system shall provide its subscribers a separately available basic service tier to which subscription is re- quired for access to any other tier of service. Such basic service tier shall, at a minimum, consist of the following:

(i) All signals carried in fulfillment of the require- ments of sections 614 and 615.

(ii) Any public, educational, and governmental ac- cess programming required by the franchise of the cable system to be provided to subscribers.

(iii) Any signal of any television broadcast station that is provided by the cable operator to any sub- scriber, except a signal which is secondarily trans- mitted by a satellite carrier beyond the local service area of such station. (B) PERMITTED ADDITIONS TO BASIC TIER.—A cable op-

erator may add additional video programming signals or services to the basic service tier. Any such additional sig- nals or services provided on the basic service tier shall be provided to subscribers at rates determined under the reg- ulations prescribed by the Commission under this sub- section. (8) BUY-THROUGH OF OTHER TIERS PROHIBITED.—

(A) PROHIBITION.—A cable operator may not require the subscription to any tier other than the basic service tier required by paragraph (7) as a condition of access to video programming offered on a per channel or per pro- gram basis. A cable operator may not discriminate be- tween subscribers to the basic service tier and other sub- scribers with regard to the rates charged for video pro- gramming offered on a per channel or per program basis.

(B) EXCEPTION; LIMITATION.—The prohibition in sub- paragraph (A) shall not apply to a cable system that, by reason of the lack of addressable converter boxes or other technological limitations, does not permit the operator to offer programming on a per channel or per program basis in the same manner required by subparagraph (A). This subparagraph shall not be available to any cable operator after—

(i) the technology utilized by the cable system is modified or improved in a way that eliminates such technological limitation; or

(ii) 10 years after the date of enactment of the Cable Television Consumer Protection and Competi- tion Act of 1992, subject to subparagraph (C). (C) WAIVER.—If, in any proceeding initiated at the re-

quest of any cable operator, the Commission determines that compliance with the requirements of subparagraph (A) would require the cable operator to increase its rates,

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335 Sec. 623COMMUNICATIONS ACT OF 1934

the Commission may, to the extent consistent with the public interest, grant such cable operator a waiver from such requirements for such specified period as the Com- mission determines reasonable and appropriate.

(c) REGULATION OF UNREASONABLE RATES.— (1) COMMISSION REGULATIONS.—Within 180 days after the

date of enactment of the Cable Television Consumer Protection and Competition Act of 1992, the Commission shall, by regula- tion, establish the following:

(A) criteria prescribed in accordance with paragraph (2) for identifying, in individual cases, rates for cable pro- gramming services that are unreasonable;

(B) fair and expeditious procedures for the receipt, consideration, and resolution of complaints from any fran- chising authority (in accordance with paragraph (3)) alleg- ing that a rate for cable programming services charged by a cable operator violates the criteria prescribed under sub- paragraph (A), which procedures shall include the min- imum showing that shall be required for a complaint to ob- tain Commission consideration and resolution of whether the rate in question is unreasonable; and

(C) the procedures to be used to reduce rates for cable programming services that are determined by the Commis- sion to be unreasonable and to refund such portion of the rates or charges that were paid by subscribers after the fil- ing of the first complaint filed with the franchising author- ity under paragraph (3) and that are determined to be un- reasonable. (2) FACTORS TO BE CONSIDERED.—In establishing the cri-

teria for determining in individual cases whether rates for cable programming services are unreasonable under paragraph (1)(A), the Commission shall consider, among other factors—

(A) the rates for similarly situated cable systems offer- ing comparable cable programming services, taking into account similarities in facilities, regulatory and govern- mental costs, the number of subscribers, and other rel- evant factors;

(B) the rates for cable systems, if any, that are subject to effective competition;

(C) the history of the rates for cable programming services of the system, including the relationship of such rates to changes in general consumer prices;

(D) the rates, as a whole, for all the cable program- ming, cable equipment, and cable services provided by the system, other than programming provided on a per chan- nel or per program basis;

(E) capital and operating costs of the cable system, in- cluding the quality and costs of the customer service pro- vided by the cable system; and

(F) the revenues (if any) received by a cable operator from advertising from programming that is carried as part of the service for which a rate is being established, and changes in such revenues, or from other consideration ob-

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336Sec. 623 COMMUNICATIONS ACT OF 1934

tained in connection with the cable programming services concerned. (3) REVIEW OF RATE CHANGES.—The Commission shall re-

view any complaint submitted by a franchising authority after the date of enactment of the Telecommunications Act of 1996 concerning an increase in rates for cable programming services and issue a final order within 90 days after it receives such a complaint, unless the parties agree to extend the period for such review. A franchising authority may not file a complaint under this paragraph unless, within 90 days after such in- crease becomes effective it receives subscriber complaints.

(4) SUNSET OF UPPER TIER RATE REGULATION.—This sub- section shall not apply to cable programming services provided after March 31, 1999. (d) UNIFORM RATE STRUCTURE REQUIRED.—A cable operator

shall have a rate structure, for the provision of cable service, that is uniform throughout the geographic area in which cable service is provided over its cable system. This subsection does not apply to (1) a cable operator with respect to the provision of cable service over its cable system in any geographic area in which the video programming services offered by the operator in that area are sub- ject to effective competition, or (2) any video programming offered on a per channel or per program basis. Bulk discounts to multiple dwelling units shall not be subject to this subsection, except that a cable operator of a cable system that is not subject to effective competition may not charge predatory prices to a multiple dwelling unit. Upon a prima facie showing by a complainant that there are reasonable grounds to believe that the discounted price is preda- tory, the cable system shall have the burden of showing that its discounted price is not predatory.

(e) DISCRIMINATION; SERVICES FOR THE HEARING IMPAIRED.— Nothing in this title shall be construed as prohibiting any Federal agency, State, or a franchising authority from—

(1) prohibiting discrimination among subscribers and po- tential subscribers to cable service, except that no Federal agency, State, or franchising authority may prohibit a cable op- erator from offering reasonable discounts to senior citizens or other economically disadvantaged group discounts; or

(2) requiring and regulating the installation or rental of equipment which facilitates the reception of cable service by hearing impaired individuals. (f) NEGATIVE OPTION BILLING PROHIBITED.—A cable operator

shall not charge a subscriber for any service or equipment that the subscriber has not affirmatively requested by name. For purposes of this subsection, a subscriber’s failure to refuse a cable operator’s proposal to provide such service or equipment shall not be deemed to be an affirmative request for such service or equipment.

(g) COLLECTION OF INFORMATION.—The Commission shall, by regulation, require cable operators to file with the Commission or a franchising authority, as appropriate, within one year after the date of enactment of the Cable Television Consumer Protection and Competition Act of 1992 and annually thereafter, such financial in- formation as may be needed for purposes of administering and en- forcing this section.

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337 Sec. 623COMMUNICATIONS ACT OF 1934

(h) PREVENTION OF EVASIONS.—Within 180 days after the date of enactment of the Cable Television Consumer Protection and Competition Act of 1992, the Commission shall, by regulation, es- tablish standards, guidelines, and procedures to prevent evasions, including evasions that result from retiering, of the requirements of this section and shall, thereafter, periodically review and revise such standards, guidelines, and procedures.

(i) SMALL SYSTEM BURDENS.—In developing and prescribing regulations pursuant to this section, the Commission shall design such regulations to reduce the administrative burdens and cost of compliance for cable systems that have 1,000 or fewer subscribers.

(j) RATE REGULATION AGREEMENTS.—During the term of an agreement made before July 1, 1990, by a franchising authority and a cable operator providing for the regulation of basic cable service rates, where there was not effective competition under Commission rules in effect on that date, nothing in this section (or the regulations thereunder) shall abridge the ability of such fran- chising authority to regulate rates in accordance with such an agreement.

(k) REPORTS ON AVERAGE PRICES.—The Commission shall an- nually publish statistical reports on the average rates for basic cable service and other cable programming, and for converter boxes, remote control units, and other equipment, of—

(1) cable systems that the Commission has found are sub- ject to effective competition under subsection (a)(2), compared with

(2) cable systems that the Commission has found are not subject to such effective competition. (l) DEFINITIONS.—As used in this section—

(1) The term ‘‘effective competition’’ means that— (A) fewer than 30 percent of the households in the

franchise area subscribe to the cable service of a cable sys- tem;

(B) the franchise area is— (i) served by at least two unaffiliated multi-

channel video programming distributors each of which offers comparable video programming to at least 50 percent of the households in the franchise area; and

(ii) the number of households subscribing to pro- gramming services offered by multichannel video pro- gramming distributors other than the largest multi- channel video programming distributor exceeds 15 percent of the households in the franchise area; (C) a multichannel video programming distributor op-

erated by the franchising authority for that franchise area offers video programming to at least 50 percent of the households in that franchise area; or

(D) a local exchange carrier or its affiliate (or any mul- tichannel video programming distributor using the facili- ties of such carrier or its affiliate) offers video program- ming services directly to subscribers by any means (other than direct-to-home satellite services) in the franchise area of an unaffiliated cable operator which is providing cable service in that franchise area, but only if the video pro-

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338Sec. 624 COMMUNICATIONS ACT OF 1934

gramming services so offered in that area are comparable to the video programming services provided by the unaffili- ated cable operator in that area. (2) The term ‘‘cable programming service’’ means any video

programming provided over a cable system, regardless of serv- ice tier, including installation or rental of equipment used for the receipt of such video programming, other than (A) video programming carried on the basic service tier, and (B) video programming offered on a per channel or per program basis. (m) SPECIAL RULES FOR SMALL COMPANIES.—

(1) IN GENERAL.—Subsections (a), (b), and (c) do not apply to a small cable operator with respect to—

(A) cable programming services, or (B) a basic service tier that was the only service tier

subject to regulation as of December 31, 1994, in any franchise area in which that operator services 50,000 or fewer subscribers.

(2) DEFINITION OF SMALL CABLE OPERATOR.—For purposes of this subsection, the term ‘‘small cable operator’’ means a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000. (n) TREATMENT OF PRIOR YEAR LOSSES.—Notwithstanding any

other provision of this section or of section 612, losses associated with a cable system (including losses associated with the grant or award of a franchise) that were incurred prior to September 4, 1992, with respect to a cable system that is owned and operated by the original franchisee of such system shall not be disallowed, in whole or in part, in the determination of whether the rates for any tier of service or any type of equipment that is subject to regu- lation under this section are lawful. SEC. 624. ø47 U.S.C. 544¿ REGULATION OF SERVICES, FACILITIES, AND

EQUIPMENT. (a) Any franchising authority may not regulate the services, fa-

cilities, and equipment provided by a cable operator except to the extent consistent with this title.

(b) In the case of any franchise granted after the effective date of this title, the franchising authority, to the extent related to the establishment or operation of a cable system—

(1) in its request for proposals for a franchise (including re- quests for renewal proposals, subject to section 626), may es- tablish requirements for facilities and equipment, but may not, except as provided in subsection (h), establish requirements for video programming or other information services; and

(2) subject to section 625, may enforce any requirements contained within the franchise—

(A) for facilities and equipment; and (B) for broad categories of video programming or other

services. (c) In the case of any franchise in effect on the effective date

of this title, the franchising authority may, subject to section 625, enforce requirements contained within the franchise for the provi-

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339 Sec. 624COMMUNICATIONS ACT OF 1934

1 The amendments made by section 303(a)(23) and section 304(a)(11) of Public Law 103–414 (108 Stat. 4295 and 4297) added the word ‘‘of’’ several times.

2 This compilation executes amendments contained in section 304(a)(12)(A) and (B) of the Communications Assistance for Law Enforcement Act (P.L. 103–414) even though such section referred to section 624(d)(2)(B) of the Communications Act of 1934.

sion of services, facilities, and equipment, whether or not related to the establishment or operation of a cable system.

(d)(1) Nothing in this title shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitu- tion of the United States.

(2) In order to restrict the viewing of 1 programming which is obscene or indecent, upon the request of a subscriber, a cable oper- ator shall provide (by sale or lease) a device by which the sub- scriber can prohibit viewing of 1 a particular cable service during periods selected by that subscriber. 2

(3)(A) If a cable operator provides a premium channel without charge to cable subscribers who do not subscribe to such premium channel, the cable operator shall, not later than 30 days before such premium channel is provided without charge—

(i) notify all cable subscribers that the cable operator plans to provide a premium channel without charge;

(ii) notify all cable subscribers when the cable operator plans to offer a premium channel without charge;

(iii) notify all cable subscribers that they have a right to request that the channel carrying the premium channel be blocked; and

(iv) block the channel carrying the premium channel upon the request of a subscriber. (B) For the purpose of this section, the term ‘‘premium chan-

nel’’ shall mean any pay service offered on a per channel or per program basis, which offers movies rated by the Motion Picture As- sociation of America as X, NC–17, or R.

(e) Within one year after the date of enactment of the Cable Television Consumer Protection and Competition Act of 1992, the Commission shall prescribe regulations which establish minimum technical standards relating to cable systems’ technical operation and signal quality. The Commission shall update such standards periodically to reflect improvements in technology. No State or franchising authority may prohibit, condition, or restrict a cable system’s use of any type of subscriber equipment or any trans- mission technology.

(f)(1) Any Federal agency, State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in this title.

(2) Paragraph (1) shall not apply to— (A) any rule, regulation, or order issued under any Federal

law, as such rule, regulation, or order (i) was in effect on Sep- tember 21, 1983, or (ii) may be amended after such date if the rule, regulation, or order as amended is not inconsistent with the express provisions of this title; and

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340Sec. 624A COMMUNICATIONS ACT OF 1934

(B) any rule, regulation, or order under title 17, United States Code. (g) Notwithstanding any such rule, regulation, or order, each

cable operator shall comply with such standards as the Commission shall prescribe to ensure that viewers of video programming on cable systems are afforded the same emergency information as is afforded by the emergency broadcasting system pursuant to Com- mission regulations in subpart G of part 73, title 47, Code of Fed- eral Regulations.

(h) A franchising authority may require a cable operator to do any one or more of the following:

(1) Provide 30 days’ advance written notice of any change in channel assignment or in the video programming service provided over any such channel.

(2) Inform subscribers, via written notice, that comments on programming and channel position changes are being re- corded by a designated office of the franchising authority. (i) Within 120 days after the date of enactment of this sub-

section, the Commission shall prescribe rules concerning the dis- position, after a subscriber to a cable system terminates service, of any cable installed by the cable operator within the premises of such subscriber. SEC. 624A. ø47 U.S.C. 544a¿ CONSUMER ELECTRONICS EQUIPMENT

COMPATIBILITY. (a) FINDINGS.—The Congress finds that—

(1) new and recent models of television receivers and video cassette recorders often contain premium features and func- tions that are disabled or inhibited because of cable scram- bling, encoding, or encryption technologies and devices, includ- ing converter boxes and remote control devices required by cable operators to receive programming;

(2) if these problems are allowed to persist, consumers will be less likely to purchase, and electronics equipment manufac- turers will be less likely to develop, manufacture, or offer for sale, television receivers and video cassette recorders with new and innovative features and functions;

(3) cable operators should use technologies that will pre- vent signal thefts while permitting consumers to benefit from such features and functions in such receivers and recorders; and

(4) compatibility among televisions, video cassette record- ers, and cable systems can be assured with narrow technical standards that mandate a minimum degree of common design and operation, leaving all features, functions, protocols, and other product and service options for selection through open competition in the market. (b) COMPATIBLE INTERFACES.—

(1) REPORT; REGULATIONS.—Within 1 year after the date of enactment of this section, the Commission, in consultation with representatives of the cable industry and the consumer electronics industry, shall report to Congress on means of as- suring compatibility between televisions and video cassette re- corders and cable systems, consistent with the need to prevent theft of cable service, so that cable subscribers will be able to

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341 Sec. 624ACOMMUNICATIONS ACT OF 1934

enjoy the full benefit of both the programming available on cable systems and the functions available on their televisions and video cassette recorders. Within 180 days after the date of submission of the report required by this subsection, the Com- mission shall issue such regulations as are necessary to assure such compatibility.

(2) SCRAMBLING AND ENCRYPTION.—In issuing the regula- tions referred to in paragraph (1), the Commission shall deter- mine whether and, if so, under what circumstances to permit cable systems to scramble or encrypt signals or to restrict cable systems in the manner in which they encrypt or scramble sig- nals, except that the Commission shall not limit the use of scrambling or encryption technology where the use of such technology does not interfere with the functions of subscribers’ television receivers or video cassette recorders. (c) RULEMAKING REQUIREMENTS.—

(1) FACTORS TO BE CONSIDERED.—In prescribing the regu- lations required by this section, the Commission shall con- sider—

(A) the need to maximize open competition in the mar- ket for all features, functions, protocols, and other product and service options of converter boxes and other cable con- verters unrelated to the descrambling or decryption of cable television signals;

(B) the costs and benefits to consumers of imposing compatibility requirements on cable operators and tele- vision manufacturers in a manner that, while providing ef- fective protection against theft or unauthorized reception of cable service, will minimize interference with or nul- lification of the special functions of subscribers’ television receivers or video cassette recorders, including functions that permit the subscriber—

(i) to watch a program on one channel while si- multaneously using a video cassette recorder to tape a program on another channel;

(ii) to use a video cassette recorder to tape two consecutive programs that appear on different chan- nels; and

(iii) to use advanced television picture generation and display features; and (C) the need for cable operators to protect the integrity

of the signals transmitted by the cable operator against theft or to protect such signals against unauthorized recep- tion. (2) REGULATIONS REQUIRED.—The regulations prescribed

by the Commission under this section shall include such regu- lations as are necessary—

(A) to specify the technical requirements with which a television receiver or video cassette recorder must comply in order to be sold as ‘‘cable compatible’’ or ‘‘cable ready’’;

(B) to require cable operators offering channels whose reception requires a converter box—

(i) to notify subscribers that they may be unable to benefit from the special functions of their television

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342Sec. 625 COMMUNICATIONS ACT OF 1934

receivers and video cassette recorders, including func- tions that permit subscribers—

(I) to watch a program on one channel while simultaneously using a video cassette recorder to tape a program on another channel;

(II) to use a video cassette recorder to tape two consecutive programs that appear on different channels; and

(III) to use advanced television picture gen- eration and display features; and (ii) to the extent technically and economically fea-

sible, to offer subscribers the option of having all other channels delivered directly to the subscribers’ tele- vision receivers or video cassette recorders without passing through the converter box; (C) to promote the commercial availability, from cable

operators and retail vendors that are not affiliated with cable systems, of converter boxes and of remote control de- vices compatible with converter boxes;

(D) to ensure that any standards or regulations devel- oped under the authority of this section to ensure compat- ibility between televisions, video cassette recorders, and cable systems do not affect features, functions, protocols, and other product and service options other than those specified in paragraph (1)(B), including telecommuni- cations interface equipment, home automation communica- tions, and computer network services;

(E) to require a cable operator who offers subscribers the option of renting a remote control unit—

(i) to notify subscribers that they may purchase a commercially available remote control device from any source that sells such devices rather than renting it from the cable operator; and

(ii) to specify the types of remote control units that are compatible with the converter box supplied by the cable operator; and (F) to prohibit a cable operator from taking any action

that prevents or in any way disables the converter box supplied by the cable operator from operating compatibly with commercially available remote control units.

(d) REVIEW OF REGULATIONS.—The Commission shall periodi- cally review and, if necessary, modify the regulations issued pursu- ant to this section in light of any actions taken in response to such regulations and to reflect improvements and changes in cable sys- tems, television receivers, video cassette recorders, and similar technology. SEC. 625. ø47 U.S.C. 545¿ MODIFICATION OF FRANCHISE OBLIGATIONS.

(a)(1) During the period a franchise is in effect, the cable oper- ator may obtain from the franchising authority modifications of the requirements in such franchise—

(A) in the case of any such requirement for facilities or equipment, including public, educational, or governmental ac- cess facilities or equipment, if the cable operator demonstrates

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that (i) it is commercially impracticable for the operator to comply with such requirement, and (ii) the proposal by the cable operator for modification of such requirement is appro- priate because of commercial impracticability; or

(B) in the case of any such requirement for services, if the cable operator demonstrates that the mix, quality, and level of services required by the franchise at the time it was granted will be maintained after such modification. (2) Any final decision by a franchising authority under this

subsection shall be made in a public proceeding. Such decision shall be made within 120 days after receipt of such request by the franchising authority, unless such 120-day period is extended by mutual agreement of the cable operator and the franchising author- ity.

(b)(1) Any cable operator whose request for modification under subsection (a) has been denied by a final decision of a franchising authority may obtain modification of such franchise requirements pursuant to the provisions of section 635.

(2) In the case of any proposed modification of a requirement for facilities or equipment, the court shall grant such modification only if the cable operator demonstrates to the court that—

(A) it is commercially impracticable for the operator to comply with such requirement; and

(B) the terms of the modification requested are appropriate because of commercial impracticability. (3) In the case of any proposed modification of a requirement

for services, the court shall grant such modification only if the cable operator demonstrates to the court that the mix, quality, and level of services required by the franchise at the time it was grant- ed will be maintained after such modification.

(c) Notwithstanding subsections (a) and (b), a cable operator may, upon 30 days’ advance notice to the franchising authority, re- arrange, replace, or remove a particular cable service required by the franchise if—

(1) such service is no longer available to the operator; or (2) such service is available to the operator only upon the

payment of a royalty required under section 801(b)(2) of title 17, United States Code, which the cable operator can docu- ment—

(A) is substantially in excess of the amount of such payment required on the date of the operator’s offer to pro- vide such service, and

(B) has not been specifically compensated for through a rate increase or other adjustment.

(d) Notwithstanding subsections (a) and (b), a cable operator may take such actions to rearrange a particular service from one service tier to another, or otherwise offer the service, if the rates for all of the service tiers involved in such actions are not subject to regulation under section 623.

(e) A cable operator may not obtain modification under this section of any requirement for services relating to public, edu- cational, or governmental access.

(f) For purposes of this section, the term ‘‘commercially imprac- ticable’’ means, with respect to any requirement applicable to a

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344Sec. 626 COMMUNICATIONS ACT OF 1934

cable operator, that it is commercially impracticable for the oper- ator to comply with such requirement as a result of a change in conditions which is beyond the control of the operator and the non- occurrence of which was a basic assumption on which the require- ment was based. SEC. 626. ø47 U.S.C. 546¿ RENEWAL.

(a)(1) A franchising authority may, on its own initiative during the 6-month period which begins with the 36th month before the franchise expiration, commence a proceeding which affords the pub- lic in the franchise area appropriate notice and participation for the purpose of (A) identifying the future cable-related community needs and interests, and (B) reviewing the performance of the cable operator under the franchise during the then current franchise term. If the cable operator submits, during such 6-month period, a written renewal notice requesting the commencement of such a proceeding, the franchising authority shall commence such a pro- ceeding not later than 6 months after the date such notice is sub- mitted.

(2) The cable operator may not invoke the renewal procedures set forth in subsections (b) through (g) unless—

(A) such a proceeding is requested by the cable operator by timely submission of such notice; or

(B) such a proceeding is commenced by the franchising au- thority on its own initiative. (b)(1) Upon completion of a proceeding under subsection (a), a

cable operator seeking renewal of a franchise may, on its own ini- tiative or at the request of a franchising authority, submit a pro- posal for renewal.

(2) Subject to section 624, any such proposal shall contain such material as the franchising authority may require, including pro- posals for an upgrade of the cable system.

(3) The franchising authority may establish a date by which such proposal shall be submitted.

(c)(1) Upon submittal by a cable operator of a proposal to the franchising authority for the renewal of a franchise pursuant to subsection (b), the franchising authority shall provide prompt pub- lic notice of such proposal and, during the 4-month period which begins on the date of the submission of the cable operator’s pro- posal pursuant to subsection (b), renew the franchise or, issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, com- mence an administrative proceeding, after providing prompt public notice of such proceeding, in accordance with paragraph (2) to con- sider whether—

(A) the cable operator has substantially complied with the material terms of the existing franchise and with applicable law;

(B) the quality of the operator’s service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix or quality of cable services or other services provided over the system, has been reasonable in light of community needs;

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(C) the operator has the financial, legal, and technical abil- ity to provide the services, facilities, and equipment as set forth in the operator’s proposal; and

(D) the operator’s proposal is reasonable to meet the future cable-related community needs and interests, taking into ac- count the cost of meeting such needs and interests. (2) In any proceeding under paragraph (1), the cable operator

shall be afforded adequate notice and the cable operator and the franchise authority, or its designee, shall be afforded fair oppor- tunity for full participation, including the right to introduce evi- dence (including evidence related to issues raised in the proceeding under subsection (a)), to require the production of evidence, and to question witnesses. A transcript shall be made of any such pro- ceeding.

(3) At the completion of a proceeding under this subsection, the franchising authority shall issue a written decision granting or de- nying the proposal for renewal based upon the record of such pro- ceeding, and transmit a copy of such decision to the cable operator. Such decision shall state the reasons therefor.

(d) Any denial of a proposal for renewal that has been sub- mitted in compliance with subsection (b) shall be based on one or more adverse findings made with respect to the factors described in subparagraphs (A) through (D) of subsection (c)(1), pursuant to the record of the proceeding under subsection (c). A franchising au- thority may not base a denial of renewal on a failure to substan- tially comply with the material terms of the franchise under sub- section (c)(1)(A) or on events considered under subsection (c)(1)(B) in any case in which a violation of the franchise or the events con- sidered under subsection (c)(1)(B) occur after the effective date of this title unless the franchising authority has provided the operator with notice and the opportunity to cure, or in any case in which it is documented that the franchising authority has waived its right to object, or the cable operator gives written notice of a failure or inability to cure and the franchising authority fails to object within a reasonable time after receipt of such notice.

(e)(1) Any cable operator whose proposal for renewal has been denied by a final decision of a franchising authority made pursuant to this section, or has been adversely affected by a failure of the franchising authority to act in accordance with the procedural re- quirements of this section, may appeal such final decision or failure pursuant to the provisions of section 635.

(2) The court shall grant appropriate relief if the court finds that—

(A) any action of the franchising authority, other than harmless error, is not in compliance with the procedural re- quirements of this section; or

(B) in the event of a final decision of the franchising au- thority denying the renewal proposal, the operator has dem- onstrated that the adverse finding of the franchising authority with respect to each of the factors described in subparagraphs (A) through (D) of subsection (c)(1) on which the denial is based is not supported by a preponderance of the evidence, based on the record of the proceeding conducted under sub- section (c).

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346Sec. 627 COMMUNICATIONS ACT OF 1934

(f) Any decision of a franchising authority on a proposal for re- newal shall not be considered final unless all administrative review by the State has occurred or the opportunity therefor has lapsed.

(g) For purposes of this section, the term ‘‘franchise expiration’’ means the date of the expiration of the term of the franchise, as provided under the franchise, as it was in effect on the date of the enactment of this title.

(h) Notwithstanding the provisions of subsections (a) through (g) of this section, a cable operator may submit a proposal for the renewal of a franchise pursuant to this subsection at any time, and a franchising authority may, after affording the public adequate no- tice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections (a) through (g) of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is sub- mitted in accordance with subsections (a) through (g).

(i) Notwithstanding the provisions of subsections (a) through (h), any lawful action to revoke a cable operator’s franchise for cause shall not be negated by the subsequent initiation of renewal proceedings by the cable operator under this section. SEC. 627. ø47 U.S.C. 547¿ CONDITIONS OF SALE.

(a) If a renewal of a franchise held by a cable operator is de- nied and the franchising authority acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be—

(1) at fair market value, determined on the basis of the cable system valued as a going concern but with no value allo- cated to the franchise itself, or

(2) in the case of any franchise existing on the effective date of this title, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer. (b) If a franchise held by a cable operator is revoked for cause

and the franchising authority acquires ownership of the cable sys- tem or effects a transfer of ownership of the system to another per- son, any such acquisition or transfer shall be—

(1) at an equitable price, or (2) in the case of any franchise existing on the effective

date of this title, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer.

SEC. 628. ø47 U.S.C. 548¿ DEVELOPMENT OF COMPETITION AND DIVER- SITY IN VIDEO PROGRAMMING DISTRIBUTION.

(a) PURPOSE.—The purpose of this section is to promote the public interest, convenience, and necessity by increasing competi- tion and diversity in the multichannel video programming market, to increase the availability of satellite cable programming and sat- ellite broadcast programming to persons in rural and other areas not currently able to receive such programming, and to spur the development of communications technologies.

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347 Sec. 628COMMUNICATIONS ACT OF 1934

(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 ven- dor to engage in unfair methods of competition or unfair or decep- tive acts or practices, the purpose or effect of which is to hinder sig- nificantly or to prevent any multichannel video programming dis- tributor from providing satellite cable programming or satellite broadcast programming to subscribers or consumers.

(c) REGULATIONS REQUIRED.— (1) PROCEEDING REQUIRED.—Within 180 days after the

date of enactment of this section, 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).

(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 pro- gramming 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 multi- channel video programming distributor;

(B) prohibit discrimination by a satellite cable pro- gramming vendor in which a cable operator has an attrib- utable interest or by a satellite broadcast programming vendor in the prices, terms, and conditions of sale or deliv- ery of satellite cable programming or satellite broadcast programming among or between cable systems, cable oper- ators, or other multichannel video programming distribu- tors, or their agents or buying groups; except that such a satellite cable programming vendor in which a cable oper- ator has an attributable interest or such a satellite broad- cast programming vendor shall not be prohibited from—

(i) imposing reasonable requirements for credit- worthiness, offering of service, and financial stability and standards regarding character and technical qual- ity;

(ii) establishing different prices, terms, and condi- tions to take into account actual and reasonable dif- ferences in the cost of creation, sale, delivery, or trans- mission of satellite cable programming or satellite broadcast programming;

(iii) establishing different prices, terms, and condi- tions which take into account economies of scale, cost savings, or other direct and legitimate economic bene- fits reasonably attributable to the number of sub- scribers served by the distributor; or

(iv) entering into an exclusive contract that is per- mitted under subparagraph (D);

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348Sec. 628 COMMUNICATIONS ACT OF 1934

(C) prohibit practices, understandings, arrangements, and activities, including exclusive contracts for satellite cable programming or satellite broadcast programming be- tween 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 at- tributable interest or any satellite broadcast programming vendor in which a cable operator has an attributable inter- est for distribution to persons in areas not served by a cable operator as of the date of enactment of this section; 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 pro- gramming between a cable operator and a satellite cable programming vendor in which a cable operator has an at- tributable interest or a satellite broadcast programming vendor in which a cable operator has an attributable inter- est, 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 inter- nal satellite communication of any broadcast network or cable network that is not satellite broadcast programming. (4) PUBLIC INTEREST DETERMINATIONS ON EXCLUSIVE CON-

TRACTS.—In determining whether an exclusive contract is in the public interest for purposes of paragraph (2)(D), the Com- mission shall consider each of the following factors with re- spect 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 develop- ment 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 tech- nologies other than cable;

(C) the effect of such exclusive contract on the attrac- tion of capital investment in the production and distribu- tion of new satellite cable programming;

(D) the effect of such exclusive contract on diversity of programming in the multichannel video programming dis- tribution market; and

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349 Sec. 628COMMUNICATIONS ACT OF 1934

(E) the duration of the exclusive contract. (5) SUNSET PROVISION.—The prohibition required by para-

graph (2)(D) shall cease to be effective 10 years after the date of enactment of this section, unless the Commission finds, in a proceeding conducted during the last year of such 10-year pe- riod, that such prohibition continues to be necessary to pre- serve and protect competition and diversity in the distribution of video programming. (d) ADJUDICATORY PROCEEDING.—Any multichannel video pro-

gramming distributor aggrieved by conduct that it alleges con- stitutes a violation of subsection (b), or the regulations of the Com- mission under subsection (c), may commence an adjudicatory pro- ceeding at the Commission.

(e) REMEDIES FOR VIOLATIONS.— (1) REMEDIES AUTHORIZED.—Upon completion of such adju-

dicatory 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 program- ming to the aggrieved multichannel video programming dis- tributor.

(2) ADDITIONAL REMEDIES.—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. (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 al- leged 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 sub- section (c), 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 en- tered into on or before June 1, 1990, except that the provisions of subsection (c)(2)(C) shall apply for distribution to persons in areas not served by a cable operator.

(2) LIMITATION ON RENEWALS.—A contract that was en- tered into on or before June 1, 1990, but that is renewed or ex- tended after the date of enactment of this section shall not be exempt under paragraph (1). (i) DEFINITIONS.—As used in this section:

(1) The term ‘‘satellite cable programming’’ has the mean- ing provided under section 705 of this Act, except that such term does not include satellite broadcast programming.

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350Sec. 629 COMMUNICATIONS ACT OF 1934

(2) The term ‘‘satellite cable programming vendor’’ means a person engaged in the production, creation, or wholesale dis- tribution 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 re- transmitted 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, United States Code, 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 pro- gramming vendor in which a cable operator has an attributable in- terest 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 direc- tors shall not by itself establish an attributable interest by a com- mon carrier in a satellite cable programming vendor (or its parent company). SEC. 629. ø47 U.S.C. 549¿ COMPETITIVE AVAILABILITY OF NAVIGATION

DEVICES. (a) COMMERCIAL CONSUMER AVAILABILITY OF EQUIPMENT USED

TO ACCESS SERVICES PROVIDED BY MULTICHANNEL VIDEO PRO- GRAMMING DISTRIBUTORS.—The Commission shall, in consultation with appropriate industry standard-setting organizations, adopt regulations to assure the commercial availability, to consumers of multichannel video programming and other services offered over multichannel video programming systems, of converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems, from manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor. Such regulations shall not prohibit any multichannel video programming distributor from also offering converter boxes, interactive communications equipment, and other equipment used by consumers to access mul- tichannel video programming and other services offered over multi- channel video programming systems, to consumers, if the system operator’s charges to consumers for such devices and equipment are separately stated and not subsidized by charges for any such service.

(b) PROTECTION OF SYSTEM SECURITY.—The Commission shall not prescribe regulations under subsection (a) which would jeop- ardize security of multichannel video programming and other serv- ices offered over multichannel video programming systems, or im- pede the legal rights of a provider of such services to prevent theft of service.

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(c) WAIVER.—The Commission shall waive a regulation adopted under subsection (a) for a limited time upon an appropriate show- ing by a provider of multichannel video programming and other services offered over multichannel video programming systems, or an equipment provider, that such waiver is necessary to assist the development or introduction of a new or improved multichannel video programming or other service offered over multichannel video programming systems, technology, or products. Upon an appro- priate showing, the Commission shall grant any such waiver re- quest within 90 days of any application filed under this subsection, and such waiver shall be effective for all service providers and products in that category and for all providers of services and prod- ucts.

(d) AVOIDANCE OF REDUNDANT REGULATIONS.— (1) COMMERCIAL AVAILABILITY DETERMINATIONS.—Deter-

minations made or regulations prescribed by the Commission with respect to commercial availability to consumers of con- verter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems, before the date of enactment of the Telecommunications Act of 1996 shall fulfill the require- ments of this section.

(2) REGULATIONS.—Nothing in this section affects section 64.702(e) of the Commission’s regulations (47 C.F.R. 64.702(e)) or other Commission regulations governing interconnection and competitive provision of customer premises equipment used in connection with basic common carrier communications services. (e) SUNSET.—The regulations adopted under this section shall

cease to apply when the Commission determines that— (1) the market for the multichannel video programming

distributors is fully competitive; (2) the market for converter boxes, and interactive commu-

nications equipment, used in conjunction with that service is fully competitive; and

(3) elimination of the regulations would promote competi- tion and the public interest. (f) COMMISSION’S AUTHORITY.—Nothing in this section shall be

construed as expanding or limiting any authority that the Commis- sion may have under law in effect before the date of enactment of the Telecommunications Act of 1996.

PART IV—MISCELLANEOUS PROVISIONS

SEC. 631. ø47 U.S.C. 551¿ PROTECTION OF SUBSCRIBER PRIVACY. (a)(1) At the time of entering into an agreement to provide any

cable service or other service to a subscriber and at least once a year thereafter, a cable operator shall provide notice in the form of a separate, written statement to such subscriber which clearly and conspicuously informs the subscriber of—

(A) the nature of personally identifiable information col- lected or to be collected with respect to the subscriber and the nature of the use of such information;

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352Sec. 631 COMMUNICATIONS ACT OF 1934

(B) the nature, frequency, and purpose of any disclosure which may be made of such information, including an identi- fication of the types of persons to whom the disclosure may be made;

(C) the period during which such information will be main- tained by the cable operator;

(D) the times and place at which the subscriber may have access to such information in accordance with subsection (d); and

(E) the limitations provided by this section with respect to the collection and disclosure of information by a cable operator and the right of the subscriber under subsections (f) and (h) to enforce such limitations.

In the case of subscribers who have entered into such an agree- ment before the effective date of this section, such notice shall be provided within 180 days of such date and at least once a year thereafter.

(2) For purposes of this section, other than subsection (h)— (A) the term ‘‘personally identifiable information’’ does not

include any record of aggregate data which does not identify particular persons;

(B) the term ‘‘other service’’ includes any wire or radio communications service provided using any of the facilities of a cable operator that are used in the provision of cable service; and

(C) the term ‘‘cable operator’’ includes, in addition to per- sons within the definition of cable operator in section 602, any person who (i) is owned or controlled by, or under common ownership or control with, a cable operator, and (ii) provides any wire or radio communications service. (b)(1) Except as provided in paragraph (2), a cable operator

shall not use the cable system to collect personally identifiable in- formation concerning any subscriber without the prior written or electronic consent of the subscriber concerned.

(2) A cable operator may use the cable system to collect such information in order to—

(A) obtain information necessary to render a cable service or other service provided by the cable operator to the sub- scriber; or

(B) detect unauthorized reception of cable communications. (c)(1) Except as provided in paragraph (2), a cable operator

shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are nec- essary to prevent unauthorized access to such information by a per- son other than the subscriber or cable operator.

(2) A cable operator may disclose such information if the disclo- sure is—

(A) necessary to render, or conduct a legitimate business activity related to, a cable service or other service provided by the cable operator to the subscriber;

(B) subject to subsection (h), made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed;

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(C) a disclosure of the names and addresses of subscribers to any cable service or other service, if—

(i) the cable operator has provided the subscriber the opportunity to prohibit or limit such disclosure, and

(ii) the disclosure does not reveal, directly or indi- rectly, the—

(I) extent of any viewing or other use by the sub- scriber of a cable service or other service provided by the cable operator, or

(II) the nature of any transaction made by the subscriber over the cable system of the cable operator; or

(D) to a government entity as authorized under chapters 119, 121, or 206 of title 18, United States Code, except that such disclosure shall not include records revealing cable sub- scriber selection of video programming from a cable operator. (d) A cable subscriber shall be provided access to all personally

identifiable information regarding that subscriber which is col- lected and maintained by a cable operator. Such information shall be made available to the subscriber at reasonable times and at a convenient place designated by such cable operator. A cable sub- scriber shall be provided reasonable opportunity to correct any error in such information.

(e) A cable operator shall destroy personally identifiable infor- mation if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (d) or pursuant to a court order.

(f)(1) Any person aggrieved by any act of a cable operator in violation of this section may bring a civil action in a United States district court.

(2) The court may award— (A) actual damages but not less than liquidated damages

computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(B) punitive damages; and (C) reasonable attorneys’ fees and other litigation costs

reasonably incurred. (3) The remedy provided by this section shall be in addition to

any other lawful remedy available to a cable subscriber. (g) Nothing in this title shall be construed to prohibit any

State or any franchising authority from enacting or enforcing laws consistent with this section for the protection of subscriber privacy.

(h) Except as provided in subsection (c)(2)(D), a governmental entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order only if, in the court pro- ceeding relevant to such court order—

(1) such entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engag- ing in criminal activity and that the information sought would be material evidence in the case; and

(2) the subject of the information is afforded the oppor- tunity to appear and contest such entity’s claim.

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354Sec. 632 COMMUNICATIONS ACT OF 1934

SEC. 632. ø47 U.S.C. 552¿ CONSUMER PROTECTION AND CUSTOMER SERVICE.

(a) FRANCHISING AUTHORITY ENFORCEMENT.—A franchising au- thority may establish and enforce—

(1) customer service requirements of the cable operator; and

(2) construction schedules and other construction-related requirements, including construction-related performance re- quirements, of the cable operator. (b) COMMISSION STANDARDS.—The Commission shall, within

180 days of enactment of the Cable Television Consumer Protection and Competition Act of 1992, establish standards by which cable operators may fulfill their customer service requirements. Such standards shall include, at a minimum, requirements governing—

(1) cable system office hours and telephone availability; (2) installations, outages, and service calls; and (3) communications between the cable operator and the

subscriber (including standards governing bills and refunds). (c) SUBSCRIBER NOTICE.—A cable operator may provide notice

of service and rate changes to subscribers using any reasonable written means at its sole discretion. Notwithstanding section 623(b)(6) or any other provision of this Act, a cable operator shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State, or franchising authority on the transaction between the op- erator and the subscriber.

(d) CONSUMER PROTECTION LAWS AND CUSTOMER SERVICE AGREEMENTS.—

(1) CONSUMER PROTECTION LAWS.—Nothing in this title shall be construed to prohibit any State or any franchising au- thority from enacting or enforcing any consumer protection law, to the extent not specifically preempted by this title.

(2) CUSTOMER SERVICE REQUIREMENT AGREEMENTS.—Noth- ing in this section shall be construed to preclude a franchising authority and a cable operator from agreeing to customer serv- ice requirements that exceed the standards established by the Commission under subsection (b). Nothing in this title shall be construed to prevent the establishment or enforcement of any municipal law or regulation, or any State law, concerning cus- tomer service that imposes customer service requirements that exceed the standards set by the Commission under this section, or that addresses matters not addressed by the standards set by the Commission under this section.

SEC. 633. ø47 U.S.C. 553¿ UNAUTHORIZED RECEPTION OF CABLE SERV- ICE.

(a)(1) No person shall intercept or receive or assist in inter- cepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable op- erator or as may otherwise be specifically authorized by law.

(2) For the purpose of this section, the term ‘‘assist in inter- cepting or receiving’’ shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the

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355 Sec. 633COMMUNICATIONS ACT OF 1934

case may be) for unauthorized reception of any communications service offered over a cable system in violation of subparagraph (1).

(b)(1) Any person who willfully violates subsection (a)(1) shall be fined not more than $1,000 or imprisoned for not more than 6 months, or both.

(2) Any person who violates subsection (a)(1) willfully and for purposes of commercial advantage or private financial gain shall be fined not more than $50,000 or imprisoned for not more than 2 years, or both, for the first such offense and shall be fined not more than $100,000 or imprisoned for not more than 5 years, or both, for any subsequent offense.

(3) For purposes of all penalties and remedies established for violations of subsection (a)(1), the prohibited activity established herein as it applies to each such device shall be deemed a separate violation.

(c)(1) Any person aggrieved by any violation of subsection (a)(1) may bring a civil action in a United States district court or in any other court of competent jurisdiction.

(2) The court may— (A) grant temporary and final injunctions on such terms as

it may deem reasonable to prevent or restrain violations of subsection (a)(1);

(B) award damages as described in paragraph (3); and (C) direct the recovery of full costs, including awarding

reasonable attorneys’ fees to an aggrieved party who prevails. (3)(A) Damages awarded by any court under this section shall

be computed in accordance with either of the following clauses: (i) the party aggrieved may recover the actual damages

suffered by him as a result of the violation and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages; in deter- mining the violator’s profits, the party aggrieved shall be re- quired to prove only the violator’s gross revenue, and the viola- tor shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the viola- tion; or

(ii) the party aggrieved may recover an award of statutory damages for all violations involved in the action, in a sum of not less than $250 or more than $10,000 as the court considers just. (B) In any case in which the court finds that the violation was

committed willfully and for purposes of commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory under subpara- graph (A), by an amount of not more than $50,000.

(C) In any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a vio- lation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $100.

(D) Nothing in this title shall prevent any State or franchising authority from enacting or enforcing laws, consistent with this sec- tion, regarding the unauthorized interception or reception of any cable service or other communications service.

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356Sec. 634 COMMUNICATIONS ACT OF 1934

SEC. 634. ø47 U.S.C. 554¿ EQUAL EMPLOYMENT OPPORTUNITY. (a) This section shall apply to any corporation, partnership, as-

sociation, joint-stock company, or trust engaged primarily in the management or operation of any cable system.

(b) Equal opportunity in employment shall be afforded by each entity specified in subsection (a), and no person shall be discrimi- nated against in employment by such entity because of race, color, religion, national origin, age, or sex.

(c) Any entity specified in subsection (a) shall establish, main- tain, and execute a positive continuing program of specific practices designed to ensure equal opportunity in every aspect of its employ- ment policies and practices. Under the terms of its program, each such entity shall—

(1) define the responsibility of each level of management to ensure a positive application and vigorous enforcement of its policy of equal opportunity, and establish a procedure to review and control managerial and supervisory performance;

(2) inform its employees and recognized employee organi- zations of the equal employment opportunity policy and pro- gram and enlist their cooperation;

(3) communicate its equal employment opportunity policy and program and its employment needs to sources of qualified applicants without regard to race, color, religion, national ori- gin, age, or sex, and solicit their recruitment assistance on a continuing basis;

(4) conduct a continuing program to exclude every form of prejudice or discrimination based on race, color, religion, na- tional origin, age, or sex, from its personnel policies and prac- tices and working conditions; and

(5) conduct a continuing review of job structure and em- ployment practices and adopt positive recruitment, training, job design, and other measures needed to ensure genuine equality of opportunity to participate fully in all its organiza- tional units, occupations, and levels of responsibility. (d)(1) Not later than 270 days after the date of enactment of

the Cable Television Consumer Protection and Competition Act of 1992, and after notice and opportunity for hearing, the Commission shall prescribe revisions in the rules under this section in order to implement the amendments made to this section by such Act. Such revisions shall be designed to promote equality of employment op- portunities for females and minorities in each of the job categories itemized in paragraph (3).

(2) Such rules shall specify the terms under which an entity specified in subsection (a) shall, to the extent possible—

(A) disseminate its equal opportunity program to job appli- cants, employees, and those with whom it regularly does busi- ness;

(B) use minority organizations, organizations for women, media, educational institutions, and other potential sources of minority and female applicants, to supply referrals whenever jobs are available in its operation;

(C) evaluate its employment profile and job turnover against the availability of minorities and women in its fran- chise area;

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357 Sec. 634COMMUNICATIONS ACT OF 1934

(D) undertake to offer promotions of minorities and women to positions of greater responsibility;

(E) encourage minority and female entrepreneurs to con- duct business with all parts of its operation; and

(F) analyze the results of its efforts to recruit, hire, pro- mote, and use the services of minorities and women and explain any difficulties encountered in implementing its equal employment opportunity program. (3)(A) Such rules also shall require an entity specified in sub-

section (a) with more than 5 full-time employees to file with the Commission an annual statistical report identifying by race, sex, and job title the number of employees in each of the following full- time and part-time job categories:

(i) Corporate officers. (ii) General Manager. (iii) Chief Technician. (iv) Comptroller. (v) General Sales Manager. (vi) Production Manager. (vii) Managers. (viii) Professionals. (ix) Technicians. (x) Sales Personnel. (xi) Office and Clerical Personnel. (xii) Skilled Craftspersons. (xiii) Semiskilled Operatives. (xiv) Unskilled Laborers. (xv) Service Workers.

(B) The report required by subparagraph (A) shall be made on separate forms, provided by the Commission, for full-time and part- time employees. The Commission’s rules shall sufficiently define the job categories listed in clauses (i) through (vi) of such subpara- graph so as to ensure that only employees who are principal deci- sionmakers and who have supervisory authority are reported for such categories. The Commission shall adopt rules that define the job categories listed in clauses (vii) through (xv) in a manner that is consistent with the Commission policies in effect on June 1, 1990. The Commission shall prescribe the method by which entities shall be required to compute and report the number of minorities and women in the job categories listed in clauses (i) through (x) and the number of minorities and women in the job categories list- ed in clauses (i) through (xv) in proportion to the total number of qualified minorities and women in the relevant labor market. The report shall include information on hiring, promotion, and recruit- ment practices necessary for the Commission to evaluate the efforts of entities to comply with the provisions of paragraph (2) of this subsection. The report shall be available for public inspection at the entity’s central location and at every location where 5 or more full-time employees are regularly assigned to work. Nothing in this subsection shall be construed as prohibiting the Commission from collecting or continuing to collect statistical or other employment information in a manner that it deems appropriate to carry out this section.

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358Sec. 634 COMMUNICATIONS ACT OF 1934

(4) The Commission may amend such rules from time to time to the extent necessary to carry out the provisions of this section. Any such amendment shall be made after notice and opportunity for comment.

(e)(1) On an annual basis, the Commission shall certify each entity described in subsection (a) as in compliance with this section if, on the basis of information in the possession of the Commission, including the report filed pursuant to subsection (d)(3), such entity was in compliance, during the annual period involved, with the re- quirements of subsections (b), (c), and (d).

(2) The Commission shall, periodically but not less frequently than every five years, investigate the employment practices of each entity described in subsection (a), in the aggregate, as well as in individual job categories, and determine whether such entity is in compliance with the requirements of subsections (b), (c), and (d), including whether such entity’s employment practices deny or abridge women and minorities equal employment opportunities. As part of such investigation, the Commission shall review whether the entity’s reports filed pursuant to subsection (d)(3) accurately re- flect employee responsibilities in the reported job classification.

(f)(1) If the Commission finds after notice and hearing that the entity involved has willfuly or repeatedly without good cause failed to comply with the requirements of this section, such failure shall constitute a substantial failure to comply with this title. The fail- ure to obtain certification under subsection (e) shall not itself con- stitute the basis for a determination of substantial failure to com- ply with this title. For purposes of this paragraph, the term ‘‘re- peatedly’’, when used with respect to failures to comply, refers to 3 or more failures during any 7-year period.

(2) Any person who is determined by the Commission, through an investigation pursuant to subsection (e) or otherwise, to have failed to meet or failed to make best efforts to meet the require- ments of this section, or rules under this section, shall be liable to the United States for a forefeiture penalty of $500 for each viola- tion. Each day of a continuing violation shall constitute a separate offense. Any entity defined in subsection (a) shall not be liable for more than 180 days of forfeitures which accrued prior to notifica- tion by the Commission of a potential violation. Nothing in this paragraph shall limit the forfeiture imposed on any person as a re- sult of any violation that continues subsequent to such notification. In addition, any person liable for such penalty may also have any license under this Act for cable auxiliary relay service suspended until the Commission determines that the failure involved has been corrected. Whoever knowingly makes any false statement or sub- mits documentation which he knows to be false, pursuant to an ap- plication for certification under this section shall be in violation of this section.

(3) The provisions of paragraphs (3) and (4), and the last 2 sen- tences of paragraph (2), of section 503(b) shall apply to forfeitures under this subsection.

(4) The Commission shall provide for notice to the public and appropriate franchising authorities of any penalty imposed under this section.

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359 Sec. 635COMMUNICATIONS ACT OF 1934

(g) Employees or applicants for employment who believe they have been discriminated against in violation of the requirements of this section, or rules under this section, or any other interested person, may file a complaint with the Commission. A complaint by any such person shall be in writing, and shall be signed and sworn to by that person. The regulations under subsection (d)(1) shall specify a program, under authorities otherwise available to the Commission, for the investigation of complaints and violations, and for the enforcement of this section.

(h)(1) For purposes of this section, the term ‘‘cable operator’’ in- cludes any operator of any satellite master antenna television sys- tem, including a system described in section 602(7)(A) and any multichannel video programming distributor.

(2) Such term does not include any operator of a system which, in the aggregate, serves fewer than 50 subscribers.

(3) In any case in which a cable operator is the owner of a mul- tiple unit dwelling, the requirements of this section shall only apply to such cable operator with respect to its employees who are primarily engaged in cable telecommunications.

(i)(1) Nothing in this section shall affect the authority of any State or any franchising authority—

(A) to establish or enforce any requirement which is con- sistent with the requirements of this section, including any re- quirement which affords equal employment opportunity protec- tion for employees;

(B) to establish or enforce any provision requiring or en- couraging any cable operator to conduct business with enter- prises which are owned or controlled by members of minority groups (as defined in section 309(i)(3)(C)(ii) or which have their principal operations located within the community served by the cable operator; or

(C) to enforce any requirement of a franchise in effect on the effective date of this title. (2) The remedies and enforcement provisions of this section are

in addition to, and not in lieu of, those available under this or any other law.

(3) The provisions of this section shall apply to any cable oper- ator, whether operating pursuant to a franchise granted before, on, or after the date of the enactment of this section. SEC. 635. ø47 U.S.C. 555¿ JUDICIAL PROCEEDINGS.

(a) Any cable operator adversely affected by any final deter- mination made by a franchising authority under section 621(a)(1), 625 or 626 may commence an action within 120 days after receiv- ing notice of such determination, which may be brought in—

(1) the district court of the United States for any judicial district in which the cable system is located; or

(2) in any State court of general jurisdiction having juris- diction over the parties. (b) The court may award any appropriate relief consistent with

the provisions of the relevant section described in subsection (a) and with the provisions of subsection (a).

(c)(1) Notwithstanding any other provision of law, any civil ac- tion challenging the constitutionality of section 614 or 615 of this

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360Sec. 635A COMMUNICATIONS ACT OF 1934

Act or any provision thereof shall be heard by a district court of three judges convened pursuant to the provisions of section 2284 of title 28, United States Code.

(2) Notwithstanding any other provision of law, an interlocu- tory or final judgment, decree, or order of the court of three judges in an action under paragraph (1) holding section 614 or 615 of this Act or any provision thereof unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order. SEC. 635A. ø47 U.S.C. 555a¿ LIMITATION OF FRANCHISING AUTHORITY

LIABILITY. (a) SUITS FOR DAMAGES PROHIBITED.—In any court proceeding

pending on or initiated after the date of enactment of this section involving any claim against a franchising authority or other gov- ernmental entity, or any official, member, employee, or agent of such authority or entity, arising from the regulation of cable serv- ice or from a decision of approval or disapproval with respect to a grant, renewal, transfer, or amendment of a franchise, any relief, to the extent such relief is required by any other provision of Fed- eral, State, or local law, shall be limited to injunctive relief and de- claratory relief.

(b) EXCEPTION FOR COMPLETED CASES.—The limitation con- tained in subsection (a) shall not apply to actions that, prior to such violation, have been determined by a final order of a court of binding jurisdiction, no longer subject to appeal, to be in violation of a cable operator’s rights.

(c) DISCRIMINATION CLAIMS PERMITTED.—Nothing in this sec- tion shall be construed as limiting the relief authorized with re- spect to any claim against a franchising authority or other govern- mental entity, or any official, member, employee, or agent of such authority or entity, to the extent such claim involves discrimination on the basis of race, color, sex, age, religion, national origin, or handicap.

(d) RULE OF CONSTRUCTION.—Nothing in this section shall be construed as creating or authorizing liability of any kind, under any law, for any action or failure to act relating to cable service or the granting of a franchise by any franchising authority or other governmental entity, or any official, member, employee, or agent of such authority or entity. SEC. 636. ø47 U.S.C. 556¿ COORDINATION OF FEDERAL, STATE, AND

LOCAL AUTHORITY. (a) Nothing in this title shall be construed to affect any author-

ity of any State, political subdivision, or agency thereof, or fran- chising authority, regarding matters of public health, safety, and welfare, to the extent consistent with the express provisions of this title.

(b) Nothing in this title shall be construed to restrict a State from exercising jurisdiction with regard to cable services consistent with this title.

(c) Except as provided in section 637, any provision of law of any State, political subdivision, or agency thereof, or franchising authority, or any provision of any franchise granted by such au-

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361 Sec. 641COMMUNICATIONS ACT OF 1934

thority, which is inconsistent with this Act shall be deemed to be preempted and superseded.

(d) For purposes of this section, the term ‘‘State’’ has the mean- ing given such term in section 3. SEC. 637. ø47 U.S.C. 557¿ EXISTING FRANCHISES.

(a) The provisions of— (1) any franchise in effect on the effective date of this title,

including any such provisions which relate to the designation, use, or support for the use of channel capacity for public, edu- cational, or governmental use, and

(2) any law of any State (as defined in section 3) in effect on the date of the enactment of this section, or any regulation promulgated pursuant to such law, which relates to such des- ignation, use or support of such channel capacity,

shall remain in effect, subject to the express provisions of this title, and for not longer than the then current remaining term of the franchise as such franchise existed on such effective date.

(b) For purposes of subsection (a) and other provisions of this title, a franchise shall be considered in effect on the effective date of this title if such franchise was granted on or before such effective date. SEC. 638. ø47 U.S.C. 558¿ CRIMINAL AND CIVIL LIABILITY.

Nothing in this title shall be deemed to affect the criminal or civil liability of cable programmers or cable operators pursuant to the Federal, State, or local law of libel, slander, obscenity, incite- ment, invasions of privacy, false or misleading advertising, or other similar laws, except that cable operators shall not incur any such liability for any program carried on any channel designated for public, educational, governmental use or on any other channel ob- tained under section 612 or under similar arrangements unless the program involves obscene material. SEC. 639. ø47 U.S.C. 559¿ OBSCENE PROGRAMMING.

Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined under title 18, United States Code, or impris- oned not more than 2 years, or both. SEC. 640. ø47 U.S.C. 560¿ SCRAMBLING OF CABLE CHANNELS FOR NON-

SUBSCRIBERS. (a) SUBSCRIBER REQUEST.—Upon request by a cable service

subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it.

(b) DEFINITION.—As used in this section, the term ‘‘scramble’’ means to rearrange the content of the signal of the programming so that the programming cannot be viewed or heard in an under- standable manner. SEC. 641. ø47 U.S.C. 561¿ SCRAMBLING OF SEXUALLY EXPLICIT ADULT

VIDEO SERVICE PROGRAMMING. (a) REQUIREMENT.—In providing sexually explicit adult pro-

gramming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming,

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362Sec. 651 COMMUNICATIONS ACT OF 1934

a multichannel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber to such channel or programming does not receive it.

(b) IMPLEMENTATION.—Until a multichannel video program- ming distributor complies with the requirement set forth in sub- section (a), the distributor shall limit the access of children to the programming referred to in that subsection by not providing such programming during the hours of the day (as determined by the Commission) when a significant number of children are likely to view it.

(c) DEFINITION.—As used in this section, the term ‘‘scramble’’ means to rearrange the content of the signal of the programming so that the programming cannot be viewed or heard in an under- standable manner.

PART V—VIDEO PROGRAMMING SERVICES PROVIDED BY TELEPHONE COMPANIES

SEC. 651. ø47 U.S.C. 571¿ REGULATORY TREATMENT OF VIDEO PRO- GRAMMING SERVICES.

(a) LIMITATIONS ON CABLE REGULATION.— (1) RADIO-BASED SYSTEMS.—To the extent that a common

carrier (or any other person) is providing video programming to subscribers using radio communication, such carrier (or other person) shall be subject to the requirements of title III and section 652, but shall not otherwise be subject to the re- quirements of this title.

(2) COMMON CARRIAGE OF VIDEO TRAFFIC.—To the extent that a common carrier is providing transmission of video pro- gramming on a common carrier basis, such carrier shall be subject to the requirements of title II and section 652, but shall not otherwise be subject to the requirements of this title. This paragraph shall not affect the treatment under section 602(7)(C) of a facility of a common carrier as a cable system.

(3) CABLE SYSTEMS AND OPEN VIDEO SYSTEMS.—To the ex- tent that a common carrier is providing video programming to its subscribers in any manner other than that described in paragraphs (1) and (2)—

(A) such carrier shall be subject to the requirements of this title, unless such programming is provided by means of an open video system for which the Commission has ap- proved a certification under section 653; or

(B) if such programming is provided by means of an open video system for which the Commission has approved a certification under section 653, such carrier shall be sub- ject to the requirements of this part, but shall be subject to parts I through IV of this title only as provided in 653(c). (4) ELECTION TO OPERATE AS OPEN VIDEO SYSTEM.—A com-

mon carrier that is providing video programming in a manner described in paragraph (1) or (2), or a combination thereof, may elect to provide such programming by means of an open video system that complies with section 653. If the Commission

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363 Sec. 652COMMUNICATIONS ACT OF 1934

approves such carrier’s certification under section 653, such carrier shall be subject to the requirements of this part, but shall be subject to parts I through IV of this title only as pro- vided in 653(c). (b) LIMITATIONS ON INTERCONNECTION OBLIGATIONS.—A local

exchange carrier that provides cable service through an open video system or a cable system shall not be required, pursuant to title II of this Act, to make capacity available on a nondiscriminatory basis to any other person for the provision of cable service directly to subscribers.

(c) ADDITIONAL REGULATORY RELIEF.—A common carrier shall not be required to obtain a certificate under section 214 with re- spect to the establishment or operation of a system for the delivery of video programming. SEC. 652. ø47 U.S.C. 572¿ PROHIBITION ON BUY OUTS.

(a) ACQUISITIONS BY CARRIERS.—No local exchange carrier or any affiliate of such carrier owned by, operated by, controlled by, or under common control with such carrier may purchase or other- wise acquire directly or indirectly more than a 10 percent financial interest, or any management interest, in any cable operator pro- viding cable service within the local exchange carrier’s telephone service area.

(b) ACQUISITIONS BY CABLE OPERATORS.—No cable operator or affiliate of a cable operator that is owned by, operated by, con- trolled by, or under common ownership with such cable operator may purchase or otherwise acquire, directly or indirectly, more than a 10 percent financial interest, or any management interest, in any local exchange carrier providing telephone exchange service within such cable operator’s franchise area.

(c) JOINT VENTURES.—A local exchange carrier and a cable op- erator whose telephone service area and cable franchise area, re- spectively, are in the same market may not enter into any joint venture or partnership to provide video programming directly to subscribers or to provide telecommunications services within such market.

(d) EXCEPTIONS.— (1) RURAL SYSTEMS.—Notwithstanding subsections (a), (b),

and (c) of this section, a local exchange carrier (with respect to a cable system located in its telephone service area) and a cable operator (with respect to the facilities of a local exchange carrier used to provide telephone exchange service in its cable franchise area) may obtain a controlling interest in, manage- ment interest in, or enter into a joint venture or partnership with the operator of such system or facilities for the use of such system or facilities to the extent that—

(A) such system or facilities only serve incorporated or unincorporated—

(i) places or territories that have fewer than 35,000 inhabitants; and

(ii) are outside an urbanized area, as defined by the Bureau of the Census; and (B) in the case of a local exchange carrier, such sys-

tem, in the aggregate with any other system in which such

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364Sec. 652 COMMUNICATIONS ACT OF 1934

carrier has an interest, serves less than 10 percent of the households in the telephone service area of such carrier. (2) JOINT USE.—Notwithstanding subsection (c), a local ex-

change carrier may obtain, with the concurrence of the cable operator on the rates, terms, and conditions, the use of that part of the transmission facilities of a cable system extending from the last multi-user terminal to the premises of the end user, if such use is reasonably limited in scope and duration, as determined by the Commission.

(3) ACQUISITIONS IN COMPETITIVE MARKETS.—Notwith- standing subsections (a) and (c), a local exchange carrier may obtain a controlling interest in, or form a joint venture or other partnership with, or provide financing to, a cable system (here- inafter in this paragraph referred to as ‘‘the subject cable sys- tem’’), if—

(A) the subject cable system operates in a television market that is not in the top 25 markets, and such market has more than 1 cable system operator, and the subject cable system is not the cable system with the most sub- scribers in such television market;

(B) the subject cable system and the cable system with the most subscribers in such television market held on May 1, 1995, cable television franchises from the largest municipality in the television market and the boundaries of such franchises were identical on such date;

(C) the subject cable system is not owned by or under common ownership or control of any one of the 50 cable system operators with the most subscribers as such opera- tors existed on May 1, 1995; and

(D) the system with the most subscribers in the tele- vision market is owned by or under common ownership or control of any one of the 10 largest cable system operators as such operators existed on May 1, 1995. (4) EXEMPT CABLE SYSTEMS.—Subsection (a) does not apply

to any cable system if— (A) the cable system serves no more than 17,000 cable

subscribers, of which no less than 8,000 live within an urban area, and no less than 6,000 live within a nonurban- ized area as of June 1, 1995;

(B) the cable system is not owned by, or under com- mon ownership or control with, any of the 50 largest cable system operators in existence on June 1, 1995; and

(C) the cable system operates in a television market that was not in the top 100 television markets as of June 1, 1995. (5) SMALL CABLE SYSTEMS IN NONURBAN AREAS.—Notwith-

standing subsections (a) and (c), a local exchange carrier with less than $100,000,000 in annual operating revenues (or any affiliate of such carrier owned by, operated by, controlled by, or under common control with such carrier) may purchase or otherwise acquire more than a 10 percent financial interest in, or any management interest in, or enter into a joint venture or partnership with, any cable system within the local ex- change carrier’s telephone service area that serves no more

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365 Sec. 653COMMUNICATIONS ACT OF 1934

1 So in law. Probably should be ‘‘subsection’’.

than 20,000 cable subscribers, if no more than 12,000 of those subscribers live within an urbanized area, as defined by the Bureau of the Census.

(6) WAIVERS.—The Commission may waive the restrictions of subsections 1 (a), (b), or (c) only if—

(A) the Commission determines that, because of the nature of the market served by the affected cable system or facilities used to provide telephone exchange service—

(i) the affected cable operator or local exchange carrier would be subjected to undue economic distress by the enforcement of such provisions;

(ii) the system or facilities would not be economi- cally viable if such provisions were enforced; or

(iii) the anticompetitive effects of the proposed transaction are clearly outweighed in the public inter- est by the probable effect of the transaction in meeting the convenience and needs of the community to be served; and (B) the local franchising authority approves of such

waiver. (e) DEFINITION OF TELEPHONE SERVICE AREA.—For purposes of

this section, the term ‘‘telephone service area’’ when used in con- nection with a common carrier subject in whole or in part to title II of this Act means the area within which such carrier provided telephone exchange service as of January 1, 1993, but if any com- mon carrier after such date transfers its telephone exchange serv- ice facilities to another common carrier, the area to which such fa- cilities provide telephone exchange service shall be treated as part of the telephone service area of the acquiring common carrier and not of the selling common carrier. SEC. 653. ø47 U.S.C. 573¿ ESTABLISHMENT OF OPEN VIDEO SYSTEMS.

(a) OPEN VIDEO SYSTEMS.— (1) CERTIFICATES OF COMPLIANCE.—A local exchange car-

rier may provide cable service to its cable service subscribers in its telephone service area through an open video system that complies with this section. To the extent permitted by such regulations as the Commission may prescribe consistent with the public interest, convenience, and necessity, an oper- ator of a cable system or any other person may provide video programming through an open video system that complies with this section. An operator of an open video system shall qualify for reduced regulatory burdens under subsection (c) of this sec- tion if the operator of such system certifies to the Commission that such carrier complies with the Commission’s regulations under subsection (b) and the Commission approves such certifi- cation. The Commission shall publish notice of the receipt of any such certification and shall act to approve or disapprove any such certification within 10 days after receipt of such cer- tification.

(2) DISPUTE RESOLUTION.—The Commission shall have the authority to resolve disputes under this section and the regula- tions prescribed thereunder. Any such dispute shall be resolved

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366Sec. 653 COMMUNICATIONS ACT OF 1934

within 180 days after notice of such dispute is submitted to the Commission. At that time or subsequently in a separate dam- ages proceeding, the Commission may, in the case of any viola- tion of this section, require carriage, award damages to any person denied carriage, or any combination of such sanctions. Any aggrieved party may seek any other remedy available under this Act. (b) COMMISSION ACTIONS.—

(1) REGULATIONS REQUIRED.—Within 6 months after the date of enactment of the Telecommunications Act of 1996, the Commission shall complete all actions necessary (including any reconsideration) to prescribe regulations that—

(A) except as required pursuant to section 611, 614, or 615, prohibit an operator of an open video system from dis- criminating among video programming providers with re- gard to carriage on its open video system, and ensure that the rates, terms, and conditions for such carriage are just and reasonable, and are not unjustly or unreasonably dis- criminatory;

(B) if demand exceeds the channel capacity of the open video system, prohibit an operator of an open video system and its affiliates from selecting the video programming services for carriage on more than one-third of the acti- vated channel capacity on such system, but nothing in this subparagraph shall be construed to limit the number of channels that the carrier and its affiliates may offer to provide directly to subscribers;

(C) permit an operator of an open video system to carry on only one channel any video programming service that is offered by more than one video programming pro- vider (including the local exchange carrier’s video program- ming affiliate): Provided, That subscribers have ready and immediate access to any such video programming service;

(D) extend to the distribution of video programming over open video systems the Commission’s regulations con- cerning sports exclusivity (47 C.F.R. 76.67), network non- duplication (47 C.F.R. 76.92 et seq.), and syndicated exclu- sivity (47 C.F.R. 76.151 et seq.); and

(E)(i) prohibit an operator of an open video system from unreasonably discriminating in favor of the operator or its affiliates with regard to material or information (in- cluding advertising) provided by the operator to sub- scribers for the purposes of selecting programming on the open video system, or in the way such material or informa- tion is presented to subscribers;

(ii) require an operator of an open video system to en- sure that video programming providers or copyright hold- ers (or both) are able suitably and uniquely to identify their programming services to subscribers;

(iii) if such identification is transmitted as part of the programming signal, require the carrier to transmit such identification without change or alteration; and

(iv) prohibit an operator of an open video system from omitting television broadcast stations or other unaffiliated

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video programming services carried on such system from any navigational device, guide, or menu. (2) CONSUMER ACCESS.—Subject to the requirements of

paragraph (1) and the regulations thereunder, nothing in this section prohibits a common carrier or its affiliate from negoti- ating mutually agreeable terms and conditions with over-the- air broadcast stations and other unaffiliated video program- ming providers to allow consumer access to their signals on any level or screen of any gateway, menu, or other program guide, whether provided by the carrier or its affiliate. (c) REDUCED REGULATORY BURDENS FOR OPEN VIDEO SYS-

TEMS.— (1) IN GENERAL.—Any provision that applies to a cable op-

erator under— (A) sections 613 (other than subsection (a) thereof),

616, 623(f), 628, 631, and 634 of this title, shall apply, (B) sections 611, 614, and 615 of this title, and section

325 of title III, shall apply in accordance with the regula- tions prescribed under paragraph (2), and

(C) sections 612 and 617, and parts III and IV (other than sections 623(f), 628, 631, and 634), of this title shall not apply,

to any operator of an open video system for which the Commis- sion has approved a certification under this section.

(2) IMPLEMENTATION.— (A) COMMISSION ACTION.—In the rulemaking pro-

ceeding to prescribe the regulations required by subsection (b)(1), the Commission shall, to the extent possible, impose obligations that are no greater or lesser than the obliga- tions contained in the provisions described in paragraph (1)(B) of this subsection. The Commission shall complete all action (including any reconsideration) to prescribe such regulations no later than 6 months after the date of enact- ment of the Telecommunications Act of 1996.

(B) FEES.—An operator of an open video system under this part may be subject to the payment of fees on the gross revenues of the operator for the provision of cable service imposed by a local franchising authority or other governmental entity, in lieu of the franchise fees permitted under section 622. The rate at which such fees are im- posed shall not exceed the rate at which franchise fees are imposed on any cable operator transmitting video pro- gramming in the franchise area, as determined in accord- ance with regulations prescribed by the Commission. An operator of an open video system may designate that por- tion of a subscriber’s bill attributable to the fee under this subparagraph as a separate item on the bill. (3) REGULATORY STREAMLINING.—With respect to the es-

tablishment and operation of an open video system, the re- quirements of this section shall apply in lieu of, and not in ad- dition to, the requirements of title II.

(4) TREATMENT AS CABLE OPERATOR.—Nothing in this Act precludes a video programming provider making use of an open video system from being treated as an operator of a cable

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368Sec. 701 COMMUNICATIONS ACT OF 1934

system for purposes of section 111 of title 17, United States Code. (d) DEFINITION OF TELEPHONE SERVICE AREA.—For purposes of

this section, the term ‘‘telephone service area’’ when used in con- nection with a common carrier subject in whole or in part to title II of this Act means the area within which such carrier is offering telephone exchange service.

TITLE VII—MISCELLANEOUS PROVISIONS

SEC. 701. ø47 U.S.C. 601¿ TRANSFER TO COMMISSION OF DUTIES, POW- ERS, AND FUNCTIONS UNDER EXISTING LAW.

(a) All duties, powers, and functions of the Interstate Com- merce Commission under the Act of August 7, 1888 (25 Stat. 382), relating to operation of telegraph lines by railroad and telegraph companies granted Government aid in the construction of their lines, are hereby imposed upon and vested in the Commission: Pro- vided, That such transfer of duties, powers, and functions shall not be construed to affect the duties, powers, functions, or jurisdiction of the Interstate Commerce Commission under, or to interfere with or prevent the enforcement of, the Interstate Commerce Act and all Acts amendatory thereof or supplemental thereto.

(b) All duties, powers, and functions of the Postmaster General with respect to telegraph companies and telegraph lines under any existing provision of law are hereby imposed upon and vested in the Commission.

øSection 702 was repealed by Public Law 103–414, section 304(a)(13), 108 Stat. 4296–7.¿

øSection 703 was repealed by Public Law 103–414, section 304(a)(13), 108 Stat. 4296–7.¿ SEC. 704. ø47 U.S.C. 604¿ EFFECT OF TRANSFERS, REPEALS, AND

AMENDMENTS. (a) All orders, determinations, rules, regulations, permits, con-

tracts, licenses, and privileges which have been issued, made, or granted by the Interstate Commerce Commission, the Federal Radio Commission, or the Postmaster General, under any provision of law repealed or amended by this Act or in the exercise of duties, powers, or functions transferred to the Commission by this Act, and which are in effect at the time this section takes effect, shall continue in effect until modified, terminated, superseded, or re- pealed by the Commission or by operation of law.

(b) All records transferred to the Commission under this Act shall be available for use by the Commission to the same extent as if such records were originally records of the Commission. All final valuations and determinations of depreciation charges by the Inter- state Commerce Commission with respect to common carriers en- gaged in radio or wire communication, and all orders of the Inter- state Commerce Commission with respect to such valuations and determinations, shall have the same force and effect as though made by the Commission under this Act.

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369 Sec. 705COMMUNICATIONS ACT OF 1934

1 18 U.S.C. § 2511(2) authorizes certain interception of communications by communications common carriers and by the Federal Communications Commission. Also, electronic surveillance for foreign intelligence purposes is addessed in Pub. Law No. 95–511, 92 Stat. 1783 (see §§ 102(a)(4) and 105(f)(2)(C)), Oct. 25, 1978.

SEC. 705. ø47 U.S.C. 605¿ UNAUTHORIZED PUBLICATION OF COMMU- NICATIONS.

(a) Except as authorized by chapter 119, title 18, United States Code, 1 no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through au- thorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its des- tination, (3) to proper accounting or distributing officers of the var- ious communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpena issued by a court of competent jurisdic- tion, or (6) on demand of other lawful authority. No person not being authorized by the sender shall intercept any radio commu- nication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or mean- ing of such communication (or any part thereof) or use such com- munication (or any information therein contained) for his own ben- efit or for the benefit of another not entitled thereto. This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public, which relates to ships, aircraft, vehicles, or persons in distress, or which is transmitted by an amateur radio station operator or by a citizens band radio oper- ator.

(b) The provisions of subsection (a) shall not apply to the inter- ception or receipt by any individual, or the assisting (including the manufacture or sale) of such interception or receipt, of any satellite cable programming for private viewing if—

(1) the programming involved is not encrypted; and (2)(A) a marketing system is not established under

which— (i) an agent or agents have been lawfully designated

for the purpose of authorizing private viewing by individ- uals, and

(ii) such authorization is available to the individual in- volved from the appropriate agent or agents; or (B) a marketing system described in subparagraph (A) is

established and the individuals receiving such programming

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370Sec. 705 COMMUNICATIONS ACT OF 1934

1 Subsection (c) of section 705 (formerly section 605) was added by section 11 of Public Law 100–626 (the Public Telecommunications Act of 1988). Section 11 of that public law also redesig- nated the following subsections as subsections (d) through (f). However, this redesignation was not reflected in the amendments to those subsections contained in sections 204 and 205 of Public Law 100–667 (the Satellite Home Viewer Act of 1988). This compilation executes those amend- ments to the redesignated subsections.

has obtained authorization for private viewing under that system. (c) 1 No person shall encrypt or continue to encrypt satellite de-

livered programs included in the National Program Service of the Public Broadcasting Service and intended for public viewing by re- transmission by television broadcast stations; except that as long as at least one unencrypted satellite transmission of any program subject to this subsection is provided, this subsection shall not pro- hibit additional encrypted satellite transmissions of the same pro- gram.

(d) For purposes of this section— (1) the term ‘‘satellite cable programming’’ means video

programming which is transmitted via satellite and which is primarily intended for the direct receipt by cable operators for their retransmission to cable subscribers;

(2) the term ‘‘agent,’’ with respect to any person, includes an employee of such person;

(3) the term ‘‘encrypt,’’ when used with respect to satellite cable programming, means to transmit such programming in a form whereby the aural and visual characteristics (or both) are modified or altered for the purpose of preventing the unauthor- ized receipt of such programming by persons without author- ized equipment which is designed to eliminate the effects of such modification or alteration;

(4) the term ‘‘private viewing’’ means the veiwing for pri- vate use in an individual’s dwelling unit by means of equip- ment, owned or operated by such individual, capable of receiv- ing satellite cable programming directly from a satellite;

(5) the term ‘‘private financial gain’’ shall not include the gain resulting to any individual for the private use of such in- dividual’s dwelling unit of any programming for which the in- dividual has not obtained authorization for that use; and

(6) the term ‘‘any person aggrieved’’ shall include any per- son with proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distributors of satellite cable programming, and, in the case of a violation of paragraph (4) of subsection (e), shall also include any person engaged in the lawful manufacture, distribution, or sale of equipment necessary to authorize or receive satellite cable pro- gramming. (e)(1) Any person who willfully violates subsection (a) shall be

fined not more than $2,000 or imprisoned for not more than 6 months, or both.

(2) Any person who violates subsecton (a) willfully and for pur- poses of direct or indirect commerical advantage or private finan- cial gain shall be fined not more than $50,000 or imprisoned for not more than 2 years, or both, for the first such conviction and shall

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be fined not more than $100,000 or imprisoned for not more than 5 years, or both, for any subsequent conviction.

(3)(A) Any person aggrieved by any violation of subsection (a) or paragraph (4) of this subsection may bring a civil action in a United States district court or in any other court of competent ju- risdiction.

(B) The court— (i) may grant temporary and final injunctions on such

terms as it may deem reasonable to prevent or restrain viola- tions of subsection (a);

(ii) may award damages as described in subparagraph (C); and

(iii) shall direct the recovery of full costs, including award- ing reasonable attorneys’ fees to an aggrieved party who pre- vails. (C)(i) Damages awarded by any court under this section shall

be computed, at the election of the aggrieved party, in accordance with either of the following subclauses;

(I) the party aggrieved may recover the actual damages suffered by him as a result of the violation and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages; in deter- mining the violator’s profits, the party aggrieved shall be re- quired to prove only the violator’s gross revenue, and the viola- tor shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the viola- tion; or

(II) the party aggrieved may recover an award of statutory damages for each violation of subsection (a) involved in the ac- tion in a sum of not less than $1,000 or more than $10,000, as the court considers just, and for each violation of paragraph (4) of this subsection involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just. (ii) In any case in which the court finds that the violation was

committed willfully and for purposes of direct or indirect commer- cial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of sub- section (a).

(iii) In any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a vio- lation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250.

(4) Any person who manufactures, assembles, modifies, im- ports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthor- ized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by subsection (a), shall be fined not more than $500,000 for each viola- tion, or imprisoned for not more than 5 years for each violation, or both. For purposes of all penalties and remedies established for vio- lations of this paragraph, the prohibited activity established herein

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372Sec. 706 COMMUNICATIONS ACT OF 1934

1 This compilation reflects amendments contained in section 304(a)(15) of the Communications Assistance for Law Enforcement Act (P.L. 103–414).

as it applies to each such device shall be deemed a separate viola- tion.

(5) The penalties under this subsection shall be in addition to those prescribed under any other provision of this title.

(6) Nothing in this subsection shall prevent any State, or polit- ical subdivision thereof, from enacting or enforcing any laws with respect to the importation, sale, manufacture, or distribution of equipment by any person with the intent of its use to assist in the interception or receipt of radio communications prohibited by sub- section (a).

(f) Nothing in this section shall affect any right, obligation, or liability under title 17, United States Code, any rule, regulation, or order thereunder, or any other applicable Federal, State, or local law.

(g) The Commission 1 shall initiate an inquiry concerning the need for a universal encryption standard that permits decryption of satellite cable programming intended for private viewing. In con- ducting such inquiry, the Commission shall take into account—

(1) consumer costs and benefits of any such standard, in- cluding consumer investment in equipment in operation;

(2) incorporation of technological enhancements, including advanced television formats;

(3) whether any such standard would effectively prevent present and future unauthorized decryption of satellite cable programming;

(4) the costs and benefits of any such standard on other authorized users of encrypted satellite cable programming, in- cluding cable systems and satellite master antenna television systems;

(5) the effect of any such standard on competition in the manufacture of decryption equipment; and

(6) the impact of the time delay associated with the Com- mission procedures necessary for establishment of such standards. (h) If the Commission finds, based on the information gathered

from the inquiry required by subsection (g), that a universal encryption standard is necessary and in the public interest, the Commission shall initiate a rulemaking to establish such a stand- ard. SEC. 706. ø47 U.S.C. 606¿ WAR EMERGENCY—POWERS OF PRESIDENT.

(a) During the continuance of a war in which the United States is engaged, the President is authorized, if he finds it necessary for the national defense and security, to direct that such communica- tions as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier sub- ject to this Act. He may give these directions at and for such times as he may determine, and may modify, change, suspend, or annul them and for any such purpose he is hereby authorized to issue or- ders directly, or through such person or persons as he designates for the purpose, or through the Commission. Any carrier complying with any such order or direction or preference or priority herein

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373 Sec. 706COMMUNICATIONS ACT OF 1934

authorized shall be exempt from any and all provisions in existing law imposing civil or criminal penalties, obligations, or liabilities upon carriers by reason of giving preference or priority in compli- ance with such order or direction.

(b) It shall be unlawful for any person during any war in which the United States is engaged to knowingly or willfully, by physical force or intimidation by threats of physical force, obstruct or retard or aid in obstructing or retarding interstate or foreign communica- tion by radio or wire. The President is hereby authorized, whenever in his judgment the public interest requires, to employ the armed forces of the United States to prevent any such obstruction or re- tardation of communication: Provided, That nothing in this section shall be construed to repeal, modify, or affect either section 6 or section 20 of the Act entitled ‘‘An Act to supplement existing laws against unlawful restraints and monopolies, and for other pur- poses’’, approved October 15, 1914.

(c) Upon proclamation by the President that there exists war or a threat of war, or a state of public peril or disaster or other national emergency, or in order to preserve the neutrality of the United States, the President, if he deems it necessary in the inter- est of national security or defense, may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radi- ations within the jurisdiction of the United States as prescribed by the Commission, and may cause the closing of any station for radio communication, or any device capable of emitting electromagnetic radiations between 10 kilocycles and 100,000 megacycles, which is suitable for use as a navigational aid beyond five miles, and the re- moval therefrom of its apparatus and equipment, or he may au- thorize the use or control of any such station or device and/or its apparatus and equipment, by any department of the Government under such regulations as he may prescribe upon just compensa- tion to the owners. The authority granted to the President, under this subsection, to cause the closing of any station or device and the removal therefrom of its apparatus and equipment, or to au- thorize the use or control of any station or device and/or its appa- ratus and equipment, may be exercised in the Canal Zone.

(d) Upon proclamation by the President that there exists a state or threat of war involving the United States, the President, if he deems it necessary in the interest of the national security and defense, may, during a period ending not later than six months after the termination of such state or threat of war and not later than such earlier date as the Congress by concurrent resolution may designate, (1) suspend or amend the rules and regulations ap- plicable to any or all facilities or stations for wire communication within the jurisdiction of the United States as prescribed by the Commission, (2) cause the closing of any facility or station for wire communication and the removal therefrom of its apparatus and equipment, or (3) authorize the use or control of any such facility or station and its apparatus and equipment by any department of the Government under such regulations as he may prescribe, upon just compensation to the owners.

(e) The President shall ascertain the just compensation for such use or control and certify the amount ascertained to Congress

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374Sec. 707 COMMUNICATIONS ACT OF 1934

for appropriation and payment to the person entitled thereto. If the amount so certified is unsatisfactory to the person entitled thereto, such person shall be paid only 75 per centum of the amount and shall be entitled to sue the United States to recover such further sums as added to such payment of 75 per centum will make such amount as will be just compensation for the use and control. Such suit shall be brought in the manner provided by paragraph 20 of section 24, or by section 145, of the Judicial Code, as amended.

(f) Nothing in subsection (c) or (d) shall be construed to amend, repeal, impair, or effect existing laws or powers of the States in re- lation to taxation or the lawful police regulations of the several States, except wherein such laws, powers, or regulations may affect the transmission of Government communications, or the issue of stocks and bonds by any communication system or systems.

(g) Nothing in subsection (c) or (d) shall be construed to au- thorize the President to make any amendment to the rules and reg- ulations of the Commission which the Commission would not be authorized by law to make; and nothing in subsection (d) shall be construed to authorize the President to take any action the force and effect of which shall continue beyond the date after which tak- ing of such action would not have been authorized.

(h) Any person who willfully does or causes or suffers to be done any act prohibited pursuant to the exercise of the President’s authority under this section, or who willfully fails to do any act which he is required to do pursuant to the exercise of the Presi- dent’s authority under this section, or who willfully causes or suf- fers such failure, shall, upon conviction thereof, be punished for such offense by a fine of not more than $1,000 or by imprisonment for not more than one year, or both, and, if a firm, partnership, as- sociation, or corporation, by fine of not more than $5,000, except that any person who commits such an offense with intent to injure the United States, or with intent to secure an advantage to any for- eign nation, shall, upon conviction thereof, be punished by a fine of not more than $20,000 or by imprisonment for not more than 20 years, or both. SEC. 707. ø47 U.S.C. 607¿ EFFECTIVE DATE OF ACT.

This Act shall take effect upon the organization of the Commis- sion, except that this section and sections 1 and 4 shall take effect July 1, 1934. The Commission shall be deemed to be organized upon such date as four members of the Commission have taken of- fice. SEC. 708. ø47 U.S.C. 608¿ SEPARABILITY CLAUSE.

If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of the Act and the application of such provision to other persons or cir- cumstances shall not be affected thereby. SEC. 709. ø47 U.S.C. 609¿ SHORT TITLE.

This Act may be cited as the ‘‘Communications Act of 1934.’’ SEC. 710. ø47 U.S.C. 610¿ TELEPHONE SERVICE FOR THE DISABLED.

(a) The Commission shall establish such regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing.

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(b)(1) Except as provided in paragraphs (2) and (3) and sub- section (c), the Commission shall require that customer premises equipment described in this paragraph provide internal means for effective use with hearing aids that are designed to be compatible with telephones which meet established technical standards for hearing aid compatibility. Customer premises equipment described in this paragraph are the following:

(A) All essential telephones. (B) All telephones manufactured in the United States

(other than for export) more than one year after the date of en- actment of the Hearing Aid Compatibility Act of 1988 or im- ported for use in the United States more than one year after such date.

(C) All customer premises equipment used with advanced communications services that is designed to provide 2-way voice communication via a built-in speaker intended to be held to the ear in a manner functionally equivalent to a telephone, subject to the regulations prescribed by the Commission under subsection (e). (2)(A) The regulations prescribed by the Commission under

paragraph (1) shall exempt from the requirements established pur- suant to subparagraphs (B) and (C) of paragraph (1) only—

(i) telephones used with public mobile services; (ii) telephones used with private radio services; and (iii) secure telephones.

(B) The Commission shall periodically assess the appropriate- ness of continuing in effect the exemptions for telephones and other customer premises equipment described in subparagraph (A) of this paragraph. The Commission shall revoke or otherwise limit any such exemption if the Commission determines that—

(i) such revocation or limitation is in the public interest; (ii) continuation of the exemption without such revocation

or limitation would have an adverse effect on hearing-impaired individuals;

(iii) compliance with the requirements of subparagraph (B) or (C) of paragraph (1) is technologically feasible for the tele- phones to which the exemption applies; and

(iv) compliance with the requirements of subparagraph (B) or (C) of paragraph (1) would not increase costs to such an ex- tent that the telephones to which the exemption applies could not be successfully marketed. (3) The Commission may, upon the application of any inter-

ested person, initiate a proceeding to waive the requirements of paragraph (1)(B) of this subsection with respect to new telephones, or telephones associated with a new technology or service. The Commission shall not grant such a waiver unless the Commission determines, on the basis of evidence in the record of such pro- ceeding, that such telephones, or such technology or service, are in the public interest, and that (A) compliance with the requirements of paragraph (1)(B) is technologically infeasible, or (B) compliance with such requirements would increase the costs of the telephones, or of the technology or service, to such an extent that such tele- phones, technology, or service could not be successfully marketed. In any proceeding under this paragraph to grant a waiver from the

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376Sec. 710 COMMUNICATIONS ACT OF 1934

requirements of paragraph (1)(B), the Commission shall consider the effect on hearing-impaired individuals of granting the waiver. The Commission shall periodically review and determine the con- tinuing need for any waiver granted pursuant to this paragraph.

(4) For purposes of this subsection— (A) the term ‘‘essential telephones’’ means only coin-oper-

ated telephones, telephones provided for emergency use, and other telephones frequently needed for use by persons using such hearing aids;

(B) the term ‘‘telephones used with public mobile services’’ means telephones and other customer premises equipment used in whole or in part with air-to-ground radiotelephone services, cellular radio telecommunications services, offshore radio, rural radio service, public land mobile telephone service, or other common carrier radio communication services covered by title 47 of the Code of Federal Regulations, or any function- ally equivalent unlicensed wireless services;

(C) the term ‘‘telephones used with private radio services’’ means telephones and other customer premises equipment used in whole or in part with private land mobile radio serv- ices and other communications services characterized by the Commission in its rules as private radio services; and

(D) the term ‘‘secure telephones’’ means telephones that are approved by the United States Government for the trans- mission of classified or sensitive voice communications. (c) The Commission shall establish or approve such technical

standards as are required to enforce this section. A telephone or other customer premises equipment that is compliant with relevant technical standards developed through a public participation proc- ess and in consultation with interested consumer stakeholders (des- ignated by the Commission for the purposes of this section) will be considered hearing aid compatible for purposes of this section, until such time as the Commission may determine otherwise. The Com- mission shall consult with the public, including people with hearing loss, in establishing or approving such technical standards. The Commission may delegate this authority to an employee pursuant to section 5(c). The Commission shall remain the final arbiter as to whether the standards meet the requirements of this section.

(d) The Commission shall establish such requirements for the labeling of packaging materials for equipment as are needed to pro- vide adequate information to consumers on the compatibility be- tween telephones and hearing aids.

(e) In any rulemaking to implement the provisions of this sec- tion, the Commission shall specifically consider the costs and bene- fits to all telephone users, including persons with and without hearing loss. The Commission shall ensure that regulations adopt- ed to implement this section encourage the use of currently avail- able technology and do not discourage or impair the development of improved technology. In implementing the provisions of sub- section (b)(1)(C), the Commission shall use appropriate timetables or benchmarks to the extent necessary (1) due to technical feasi- bility, or (2) to ensure the marketability or availability of new tech- nologies to users.

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377 Sec. 713COMMUNICATIONS ACT OF 1934

(f) The Commission shall periodically review the regulations established pursuant to this section. Except for coin-operated tele- phones and telephones provided for emergency use, the Commis- sion may not require the retrofitting of equipment to achieve the purposes of this section.

(g) Any common carrier or connecting carrier may provide spe- cialized terminal equipment needed by persons whose hearing, speech, vision, or mobility is impaired. The State commission may allow the carrier to recover in its tariffs for regulated service rea- sonable and prudent costs not charged directly to users of such equipment.

(h) RULE OF CONSTRUCTION.—Nothing in the Twenty-First Century Communications and Video Accessibility Act of 2010 shall be construed to modify the Commission’s regulations set forth in section 20.19 of title 47 of the Code of Federal Regulations, as in effect on the date of enactment of such Act. SEC. 711. ø47 U.S.C. 611¿ CLOSED-CAPTIONING OF PUBLIC SERVICE AN-

NOUNCEMENTS. Any television public service announcement that is produced or

funded in whole or in part by any agency or instrumentality of Fed- eral Government shall include closed captioning of the verbal con- tent of such announcement. A television broadcast station li- censee—

(1) shall not be required to supply closed captioning for any such announcement that fails to include it; and

(2) shall not be liable for broadcasting any such announce- ment without transmitting a closed caption unless the licensee intentionally fails to transmit the closed caption that was in- cluded with the announcement.

SEC. 712. ø47 U.S.C. 612¿ SYNDICATED EXCLUSIVITY. (a) The Federal Communications Commission shall initiate a

combined inquiry and rulemaking proceeding for the purpose of— (1) determining the feasibility of imposing syndicated ex-

clusivity rules with respect to the delivery of syndicated pro- gramming (as defined by the Commission) for private home viewing of secondary transmissions by satellite of broadcast station signals similar to the rules issued by the Commission with respect to syndicated exclusivity and cable television; and

(2) adopting such rules if the Commission considers the imposition of such rules to be feasible. (b) In the event that the Commission adopts such rules, any

willful and repeated secondary transmission made by a satellite carrier to the public of a primary transmission embodying the per- formance or display of a work which violates such Commission rules shall be subject to the remedies, sanctions, and penalties pro- vided by title V and section 705 of this Act. SEC. 713. ø47 U.S.C. 613¿ VIDEO PROGRAMMING ACCESSIBILITY.

(a) COMMISSION INQUIRY.—Within 180 days after the date of enactment of the Telecommunications Act of 1996, the Federal Communications Commission shall complete an inquiry to ascer- tain the level at which video programming is closed captioned. Such inquiry shall examine the extent to which existing or pre- viously published programming is closed captioned, the size of the

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video programming provider or programming owner providing closed captioning, the size of the market served, the relative audi- ence shares achieved, or any other related factors. The Commission shall submit to the Congress a report on the results of such in- quiry.

(b) ACCOUNTABILITY CRITERIA.—Within 18 months after such date of enactment, the Commission shall prescribe such regulations as are necessary to implement this section. Such regulations shall ensure that—

(1) video programming first published or exhibited after the effective date of such regulations is fully accessible through the provision of closed captions, except as provided in sub- section (d); and

(2) video programming providers or owners maximize the accessibility of video programming first published or exhibited prior to the effective date of such regulations through the pro- vision of closed captions, except as provided in subsection (d). (c) DEADLINES FOR CAPTIONING.—

(1) IN GENERAL.—The regulations prescribed pursuant to subsection (b) shall include an appropriate schedule of dead- lines for the provision of closed captioning of video program- ming once published or exhibited on television.

(2) DEADLINES FOR PROGRAMMING DELIVERED USING INTER- NET PROTOCOL.—

(A) REGULATIONS ON CLOSED CAPTIONING ON VIDEO PROGRAMMING DELIVERED USING INTERNET PROTOCOL.—Not later than 6 months after the submission of the report to the Commission required by subsection (e)(1) of the Twen- ty-First Century Communications and Video Accessibility Act of 2010, the Commission shall revise its regulations to require the provision of closed captioning on video pro- gramming delivered using Internet protocol that was pub- lished or exhibited on television with captions after the ef- fective date of such regulations.

(B) SCHEDULE.—The regulations prescribed under this paragraph shall include an appropriate schedule of dead- lines for the provision of closed captioning, taking into ac- count whether such programming is prerecorded and edit- ed for Internet distribution, or whether such programming is live or near-live and not edited for Internet distribution.

(C) COST.—The Commission may delay or waive the regulation promulgated under subparagraph (A) to the ex- tent the Commission finds that the application of the regu- lation to live video programming delivered using Internet protocol with captions after the effective date of such regu- lations would be economically burdensome to providers of video programming or program owners.

(D) REQUIREMENTS FOR REGULATIONS.—The regula- tions prescribed under this paragraph—

(i) shall contain a definition of ‘‘near-live program- ming’’ and ‘‘edited for Internet distribution’’;

(ii) may exempt any service, class of service, pro- gram, class of program, equipment, or class of equip- ment for which the Commission has determined that

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the application of such regulations would be economi- cally burdensome for the provider of such service, pro- gram, or equipment;

(iii) shall clarify that, for the purposes of imple- mentation, of this subsection, the terms ‘‘video pro- gramming distributors’’ and ‘‘video programming pro- viders’’ include an entity that makes available directly to the end user video programming through a distribu- tion method that uses Internet protocol;

(iv) and describe the responsibilities of video pro- gramming providers or distributors and video pro- gramming owners;

(v) shall establish a mechanism to make available to video programming providers and distributors infor- mation on video programming subject to the Act on an ongoing basis;

(vi) shall consider that the video programming provider or distributor shall be deemed in compliance if such entity enables the rendering or pass through of closed captions and makes a good faith effort to iden- tify video programming subject to the Act using the mechanism created in (v); and

(vii) shall provide that de minimis failure to com- ply with such regulations by a video programming pro- vider or owner shall not be treated as a violation of the regulations.

(3) ALTERNATE MEANS OF COMPLIANCE.—An entity may meet the requirements of this section through alternate means than those prescribed by regulations pursuant to subsection (b), as revised pursuant to paragraph (2)(A) of this subsection, if the requirements of this section are met, as determined by the Commission. (d) EXEMPTIONS.—Notwithstanding subsection (b)—

(1) the Commission may exempt by regulation programs, classes of programs, or services for which the Commission has determined that the provision of closed captioning would be economically burdensome to the provider or owner of such pro- gramming;

(2) a provider of video programming or the owner of any program carried by the provider shall not be obligated to sup- ply closed captions if such action would be inconsistent with contracts in effect on the date of enactment of the Tele- communications Act of 1996, except that nothing in this section shall be construed to relieve a video programming provider of its obligations to provide services required by Federal law; and

(3) a provider of video programming or program owner may petition the Commission for an exemption from the re- quirements of this section, and the Commission may grant such petition upon a showing that the requirements contained in this section would be economically burdensome. During the pendency of such a petition, such provider or owner shall be exempt from the requirements of this section. The Commission shall act to grant or deny any such petition, in whole or in part, within 6 months after the Commission receives such peti-

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tion, unless the Commission finds that an extension of the 6- month period is necessary to determine whether such require- ments are economically burdensome. (e) UNDUE BURDEN.—The term ‘‘undue burden’’ means signifi-

cant difficulty or expense. In determining whether the closed cap- tions necessary to comply with the requirements of this paragraph would result in an undue economic burden, the factors to be consid- ered include—

(1) the nature and cost of the closed captions for the pro- gramming;

(2) the impact on the operation of the provider or program owner;

(3) the financial resources of the provider or program owner; and

(4) the type of operations of the provider or program owner. (f) VIDEO DESCRIPTION.—

(1) REINSTATEMENT OF REGULATIONS.—On the day that is 1 year after the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Com- mission shall, after a rulemaking, reinstate its video descrip- tion regulations contained in the Implementation of Video De- scription of Video Programming Report and Order (15 F.C.C.R. 15,230 (2000)), recon. granted in part and denied in part, (16 F.C.C.R. 1251 (2001)), modified as provided in paragraph (2).

(2) MODIFICATIONS TO REINSTATED REGULATIONS.—Such regulations shall be modified only as follows:

(A) The regulations shall apply to video programming, as defined in subsection (h), insofar as such programming is transmitted for display on television in digital format.

(B) The Commission shall update the list of the top 25 designated market areas, the list of the top 5 national non- broadcast networks that have at least 50 hours per quar- ter of prime time programming that is not exempt under this paragraph, and the beginning calendar quarter for which compliance shall be calculated.

(C) The regulations may permit a provider of video programming or a program owner to petition the Commis- sion for an exemption from the requirements of this sec- tion upon a showing that the requirements contained in this section be economically burdensome.

(D) The Commission may exempt from the regulations established pursuant to paragraph (1) a service, class of services, program, class of programs, equipment, or class of equipment for which the Commission has determined that the application of such regulations would be economically burdensome for the provider of such service, program, or equipment.

(E) The regulations shall not apply to live or near-live programming.

(F) The regulations shall provide for an appropriate phased schedule of deadlines for compliance.

(G) The Commission shall consider extending the ex- emptions and limitations in the reinstated regulations for

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technical capability reasons to all providers and owners of video programming. (3) INQUIRIES ON FURTHER VIDEO DESCRIPTION REQUIRE-

MENTS.—The Commission shall commence the following inquir- ies not later than 1 year after the completion of the phase-in of the reinstated regulations and shall report to Congress 1 year thereafter on the findings for each of the following:

(A) VIDEO DESCRIPTION IN TELEVISION PROGRAM- MING.—The availability, use, and benefits of video descrip- tion on video programming distributed on television, the technical and creative issues associated with providing such video description, and the financial costs of providing such video description for providers of video programming and program owners.

(B) VIDEO DESCRIPTION IN VIDEO PROGRAMMING DIS- TRIBUTED ON THE INTERNET.—The technical and oper- ational issues, costs, and benefits of providing video de- scriptions for video programming that is delivered using Internet protocol. (4) CONTINUING COMMISSION AUTHORITY.—

(A) IN GENERAL.—The Commission may not issue addi- tional regulations unless the Commission determines, at least 2 years after completing the reports required in para- graph (3), that the need for and benefits of providing video description for video programming, insofar as such pro- gramming is transmitted for display on television, are greater than the technical and economic costs of providing such additional programming.

(B) LIMITATION.—If the Commission makes the deter- mination under subparagraph (A) and issues additional regulations, the Commission may not increase, in total, the hour requirement for additional described programming by more than 75 percent of the requirement in the regulations reinstated under paragraph (1).

(C) APPLICATION TO DESIGNATED MARKET AREAS.— (i) IN GENERAL.—After the Commission completes

the reports on video description required in paragraph (3), the Commission shall phase in the video descrip- tion regulations for the top 60 designated market areas, except that the Commission may grant waivers to entities in specific designated market areas where it deems appropriate.

(ii) PHASE-IN DEADLINE.—The phase-in described in clause (i) shall be completed not later than 6 years after the date of enactment of the Twenty-First Cen- tury Communications and Video Accessibility Act of 2010.

(iii) REPORT.—Nine years after the date of enact- ment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall submit to the Committee on Energy and Com- merce of the House of Representatives and the Com- mittee on Commerce, Science, and Transportation of the Senate a report assessing—

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(I) the types of described video programming that is available to consumers;

(II) consumer use of such programming; (III) the costs to program owners, providers,

and distributors of creating such programming; (IV) the potential costs to program owners,

providers, and distributors in designated market areas outside of the top 60 of creating such pro- gramming;

(V) the benefits to consumers of such pro- gramming;

(VI) the amount of such programming cur- rently available; and

(VII) the need for additional described pro- gramming in designated market areas outside the top 60. (iv) ADDITIONAL MARKET AREAS.—Ten years after

the date of enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall have the authority, based upon the findings, conclusions, and recommendations con- tained in the report under clause (iii), to phase in the video description regulations for up to an additional 10 designated market areas each year—

(I) if the costs of implementing the video de- scription regulations to program owners, pro- viders, and distributors in those additional mar- kets are reasonable, as determined by the Com- mission; and

(II) except that the Commission may grant waivers to entities in specific designated market areas where it deems appropriate.

(g) EMERGENCY INFORMATION.—Not later than 1 year after the Advisory Committee report under subsection (e)(2) is submitted to the Commission, the Commission shall complete a proceeding to—

(1) identify methods to convey emergency information (as that term is defined in section 79.2 of title 47, Code of Federal Regulations) in a manner accessible to individuals who are blind or visually impaired; and

(2) promulgate regulations that require video programming providers and video programming distributors (as those terms are defined in section 79.1 of title 47, Code of Federal Regula- tions) and program owners to convey such emergency informa- tion in a manner accessible to individuals who are blind or vis- ually impaired. (h) DEFINITIONS.—For purposes of this section, section 303, and

section 330: (1) VIDEO DESCRIPTION.—The term ‘‘video description’’

means the insertion of audio narrated descriptions of a tele- vision program’s key visual elements into natural pauses be- tween the program’s dialogue.

(2) VIDEO PROGRAMMING.—The term ‘‘video programming’’ means programming by, or generally considered comparable to programming provided by a television broadcast station, but

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1 So in law. There is no subsection (i) in section 713.

not including consumer-generated media (as defined in section 3). (j) 1 PRIVATE RIGHTS OF ACTIONS PROHIBITED.—Nothing in this

section shall be construed to authorize any private right of action to enforce any requirement of this section or any regulation there- under. The Commission shall have exclusive jurisdiction with re- spect to any complaint under this section. SEC. 714. ø47 U.S.C. 614¿ TELECOMMUNICATIONS DEVELOPMENT

FUND. (a) PURPOSE OF SECTION.—It is the purpose of this section—

(1) to promote access to capital for small businesses in order to enhance competition in the telecommunications indus- try;

(2) to stimulate new technology development, and promote employment and training; and

(3) to support universal service and promote delivery of telecommunications services to underserved rural and urban areas. (b) ESTABLISHMENT OF FUND.—There is hereby established a

body corporate to be known as the Telecommunications Develop- ment Fund, which shall have succession until dissolved. The Fund shall maintain its principal office in the District of Columbia and shall be deemed, for purposes of venue and jurisdiction in civil ac- tions, to be a resident and citizen thereof.

(c) INDEPENDENT BOARD OF DIRECTORS.—The Fund shall have a Board of Directors consisting of 5 people with experience in areas including finance, investment banking, government banking, com- munications law and administrative practice, and public policy. The Board of Directors shall select annually a Chair from among the directors. A nominating committee, comprised of the Chair and 2 other directors selected by the Chair, shall appoint additional di- rectors. The Fund’s bylaws shall regulate the other aspects of the Board of Directors, including provisions relating to meetings, quorums, committees, and other matters, all as typically contained in the bylaws of a similar private investment fund.

(d) ACCOUNTS OF THE FUND.—The Fund shall maintain its ac- counts at a financial institution designated for purposes of this sec- tion by the Chairman of the Board. The accounts of the Fund shall consist of—

(1) such sums as may be appropriated to the Commission for advances to the Fund;

(2) any contributions or donations to the Fund that are ac- cepted by the Fund; and

(3) any repayment of, or other payment made with respect to, loans, equity, or other extensions of credit made from the Fund. (e) USE OF THE FUND.—All moneys deposited into the accounts

of the Fund shall be used solely for— (1) the making of loans, investments, or other extensions

of credits to eligible small businesses in accordance with sub- section (f);

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384Sec. 714 COMMUNICATIONS ACT OF 1934

1 So in law. Probably should be ‘‘Fund’’.

(2) the provision of financial advice to eligible small busi- nesses;

(3) expenses for the administration and management of the Fund (including salaries, expenses, and the rental or pur- chase of office space for the fund 1);

(4) preparation of research, studies, or financial analyses; and

(5) other services consistent with the purposes of this section. (f) LENDING AND CREDIT OPERATIONS.—Loans or other exten-

sions of credit from the Fund shall be made available to an eligible small business on the basis of—

(1) the analysis of the business plan of the eligible small business;

(2) the reasonable availability of collateral to secure the loan or credit extension;

(3) the extent to which the loan or credit extension pro- motes the purposes of this section; and

(4) other lending policies as defined by the Board. (g) RETURN OF ADVANCES.—Any advances appropriated pursu-

ant to subsection (d)(1) shall be disbursed upon such terms and conditions (including conditions relating to the time or times of re- payment) as are specified in any appropriations Act providing such advances.

(h) GENERAL CORPORATE POWERS.—The Fund shall have power—

(1) to sue and be sued, complain and defend, in its cor- porate name and through its own counsel;

(2) to adopt, alter, and use the corporate seal, which shall be judicially noticed;

(3) to adopt, amend, and repeal by its Board of Directors, bylaws, rules, and regulations as may be necessary for the con- duct of its business;

(4) to conduct its business, carry on its operations, and have officers and exercise the power granted by this section in any State without regard to any qualification or similar statute in any State;

(5) to lease, purchase, or otherwise acquire, own, hold, im- prove, use, or otherwise deal in and with any property, real, personal, or mixed, or any interest therein, wherever situated, for the purposes of the Fund;

(6) to accept gifts or donations of services, or of property, real, personal, or mixed, tangible or intangible, in aid of any of the purposes of the Fund;

(7) to sell, convey, mortgage, pledge, lease, exchange, and otherwise dispose of its property and assets;

(8) to appoint such officers, attorneys, employees, and agents as may be required, to determine their qualifications, to define their duties, to fix their salaries, require bonds for them, and fix the penalty thereof; and

(9) to enter into contracts, to execute instruments, to incur liabilities, to make loans and equity investment, and to do all

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things as are necessary or incidental to the proper manage- ment of its affairs and the proper conduct of its business. (i) ACCOUNTING, AUDITING, AND REPORTING.—The accounts of

the Fund shall be audited annually. Such audits shall be conducted in accordance with generally accepted auditing standards by inde- pendent certified public accountants. A report of each such audit shall be furnished to the Secretary of the Treasury and the Com- mission. The representatives of the Secretary and the Commission shall have access to all books, accounts, financial records, reports, files, and all other papers, things, or property belonging to or in use by the Fund and necessary to facilitate the audit.

(j) REPORT ON AUDITS BY TREASURY.—A report of each such audit for a fiscal year shall be made by the Secretary of the Treas- ury to the President and to the Congress not later than 6 months following the close of such fiscal year. The report shall set forth the scope of the audit and shall include a statement of assets and li- abilities, capital and surplus or deficit; a statement of surplus or deficit analysis; a statement of income and expense; a statement of sources and application of funds; and such comments and informa- tion as may be deemed necessary to keep the President and the Congress informed of the operations and financial condition of the Fund, together with such recommendations with respect thereto as the Secretary may deem advisable.

(k) DEFINITIONS.—As used in this section: (1) ELIGIBLE SMALL BUSINESS.—The term ‘‘eligible small

business’’ means business enterprises engaged in the tele- communications industry that have $50,000,000 or less in an- nual revenues, on average over the past 3 years prior to sub- mitting the application under this section.

(2) FUND.—The term ‘‘Fund’’ means the Telecommuni- cations Development Fund established pursuant to this sec- tion.

(3) TELECOMMUNICATIONS INDUSTRY.—The term ‘‘tele- communications industry’’ means communications businesses using regulated or unregulated facilities or services and in- cludes broadcasting, telecommunications, cable, computer, data transmission, software, programming, advanced messaging, and electronics businesses.

SEC. 715. ø47 U.S.C. 616¿ INTERNET PROTOCOL-BASED RELAY SERV- ICES.

Within one year after the date of enactment of the Twenty- First Century Communications and Video Accessibility Act of 2010, each interconnected VoIP service provider and each provider of non-interconnected VoIP service shall participate in and contribute to the Telecommunications Relay Services Fund established in sec- tion 64.604(c)(5)(iii) of title 47, Code of Federal Regulations, as in effect on the date of enactment of such Act, in a manner prescribed by the Commission by regulation to provide for obligations of such providers that are consistent with and comparable to the obliga- tions of other contributors to such Fund. SEC. 716. ø47 U.S.C. 617¿ ACCESS TO ADVANCED COMMUNICATIONS

SERVICES AND EQUIPMENT. (a) MANUFACTURING.—

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(1) IN GENERAL.—With respect to equipment manufactured after the effective date of the regulations established pursuant to subsection (e), and subject to those regulations, a manufac- turer of equipment used for advanced communications services, including end user equipment, network equipment, and soft- ware, shall ensure that the equipment and software that such manufacturer offers for sale or otherwise distributes in inter- state commerce shall be accessible to and usable by individuals with disabilities, unless the requirements of this subsection are not achievable.

(2) INDUSTRY FLEXIBILITY.—A manufacturer of equipment may satisfy the requirements of paragraph (1) with respect to such equipment by—

(A) ensuring that the equipment that such manufac- turer offers is accessible to and usable by individuals with disabilities without the use of third party applications, pe- ripheral devices, software, hardware, or customer premises equipment; or

(B) if such manufacturer chooses, using third party ap- plications, peripheral devices, software, hardware, or cus- tomer premises equipment that is available to the con- sumer at nominal cost and that individuals with disabil- ities can access.

(b) SERVICE PROVIDERS.— (1) IN GENERAL.—With respect to services provided after

the effective date of the regulations established pursuant to subsection (e), and subject to those regulations, a provider of advanced communications services shall ensure that such serv- ices offered by such provider in or affecting interstate com- merce are accessible to and usable by individuals with disabil- ities, unless the requirements of this subsection are not achiev- able.

(2) INDUSTRY FLEXIBILITY.—A provider of services may sat- isfy the requirements of paragraph (1) with respect to such services by—

(A) ensuring that the services that such provider offers are accessible to and usable by individuals with disabilities without the use of third party applications, peripheral de- vices, software, hardware, or customer premises equip- ment; or

(B) if such provider chooses, using third party applica- tions, peripheral devices, software, hardware, or customer premises equipment that is available to the consumer at nominal cost and that individuals with disabilities can ac- cess.

(c) COMPATIBILITY.—Whenever the requirements of subsections (a) or (b) are not achievable, a manufacturer or provider shall en- sure that its equipment or service is compatible with existing pe- ripheral devices or specialized customer premises equipment com- monly used by individuals with disabilities to achieve access, un- less the requirement of this subsection is not achievable.

(d) NETWORK FEATURES, FUNCTIONS, AND CAPABILITIES.—Each provider of advanced communications services has the duty not to

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install network features, functions, or capabilities that impede ac- cessibility or usability.

(e) REGULATIONS.— (1) IN GENERAL.—Within one year after the date of enact-

ment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall promulgate such regulations as are necessary to implement this section. In prescribing the regulations, the Commission shall—

(A) include performance objectives to ensure the acces- sibility, usability, and compatibility of advanced commu- nications services and the equipment used for advanced communications services by individuals with disabilities;

(B) provide that advanced communications services, the equipment used for advanced communications services, and networks used to provide advanced communications services may not impair or impede the accessibility of in- formation content when accessibility has been incorporated into that content for transmission through advanced com- munications services, equipment used for advanced com- munications services, or networks used to provide ad- vanced communications services;

(C) determine the obligations under this section of manufacturers, service providers, and providers of applica- tions or services accessed over service provider networks; and

(D) not mandate technical standards, except that the Commission may adopt technical standards as a safe har- bor for such compliance if necessary to facilitate the manu- facturers’ and service providers’ compliance with sections (a) through (c). (2) PROSPECTIVE GUIDELINES.—The Commission shall issue

prospective guidelines for a manufacturer or provider regard- ing the requirements of this section. (f) SERVICES AND EQUIPMENT SUBJECT TO SECTION 255.—The

requirements of this section shall not apply to any equipment or services, including interconnected VoIP service, that are subject to the requirements of section 255 on the day before the date of enact- ment of the Twenty-First Century Communications and Video Ac- cessibility Act of 2010. Such services and equipment shall remain subject to the requirements of section 255.

(g) ACHIEVABLE DEFINED.—For purposes of this section and section 718, the term ‘‘achievable’’ means with reasonable effort or expense, as determined by the Commission. In determining wheth- er the requirements of a provision are achievable, the Commission shall consider the following factors:

(1) The nature and cost of the steps needed to meet the re- quirements of this section with respect to the specific equip- ment or service in question.

(2) The technical and economic impact on the operation of the manufacturer or provider and on the operation of the spe- cific equipment or service in question, including on the devel- opment and deployment of new communications technologies.

(3) The type of operations of the manufacturer or provider.

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(4) The extent to which the service provider or manufac- turer in question offers accessible services or equipment con- taining varying degrees of functionality and features, and of- fered at differing price points. (h) COMMISSION FLEXIBILITY.—

(1) WAIVER.—The Commission shall have the authority, on its own motion or in response to a petition by a manufacturer or provider of advanced communications services or any inter- ested party, to waive the requirements of this section for any feature or function of equipment used to provide or access ad- vanced communications services, or for any class of such equip- ment, for any provider of advanced communications services, or for any class of such services, that—

(A) is capable of accessing an advanced communica- tions service; and

(B) is designed for multiple purposes, but is designed primarily for purposes other than using advanced commu- nications services. (2) SMALL ENTITY EXEMPTION.—The Commission may ex-

empt small entities from the requirements of this section. (i) CUSTOMIZED EQUIPMENT OR SERVICES.—The provisions of

this section shall not apply to customized equipment or services that are not offered directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

(j) RULE OF CONSTRUCTION.—This section shall not be con- strued to require a manufacturer of equipment used for advanced communications or a provider of advanced communications services to make every feature and function of every device or service acces- sible for every disability. SEC. 717. ø47 U.S.C. 618¿ ENFORCEMENT AND RECORDKEEPING OBLI-

GATIONS. (a) COMPLAINT AND ENFORCEMENT PROCEDURES.—Within one

year after the date of enactment of the Twenty-First Century Com- munications and Video Accessibility Act of 2010, the Commission shall establish regulations that facilitate the filing of formal and informal complaints that allege a violation of section 255, 716, or 718, establish procedures for enforcement actions by the Commis- sion with respect to such violations, and implement the record- keeping obligations of paragraph (5) for manufacturers and pro- viders subject to such sections. Such regulations shall include the following provisions:

(1) NO FEE.—The Commission shall not charge any fee to an individual who files a complaint alleging a violation of sec- tion 255, 716, or 718.

(2) RECEIPT OF COMPLAINTS.—The Commission shall estab- lish separate and identifiable electronic, telephonic, and phys- ical receptacles for the receipt of complaints filed under section 255, 716, or 718.

(3) COMPLAINTS TO THE COMMISSION.— (A) IN GENERAL.—Any person alleging a violation of

section 255, 716, or 718 by a manufacturer of equipment or provider of service subject to such sections may file a formal or informal complaint with the Commission.

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(B) INVESTIGATION OF INFORMAL COMPLAINT.—The Commission shall investigate the allegations in an infor- mal complaint and, within 180 days after the date on which such complaint was filed with the Commission, issue an order concluding the investigation, unless such complaint is resolved before such time. The order shall in- clude a determination whether any violation occurred.

(i) If the Commission determines that a violation has occurred, the Commission may, in the order issued under this subparagraph or in a subsequent order, di- rect the manufacturer or service provider to bring the service, or in the case of a manufacturer, the next gen- eration of the equipment or device, into compliance with requirements of those sections within a reason- able time established by the Commission in its order.

(ii) NO VIOLATION.—If a determination is made that a violation has not occurred, the Commission shall provide the basis for such determination. (C) CONSOLIDATION OF COMPLAINTS.—The Commission

may consolidate for investigation and resolution com- plaints alleging substantially the same violation. (4) OPPORTUNITY TO RESPOND.—Before the Commission

makes a determination pursuant to paragraph (3), the party that is the subject of the complaint shall have a reasonable op- portunity to respond to such complaint, and may include in such response any factors that are relevant to such determina- tion. Before issuing a final order under paragraph (3)(B)(i), the Commission shall provide such party a reasonable opportunity to comment on any proposed remedial action.

(5) RECORDKEEPING.—(A) Beginning one year after the ef- fective date of regulations promulgated pursuant to section 716(e), each manufacturer and provider subject to sections 255, 716, and 718 shall maintain, in the ordinary course of business and for a reasonable period, records of the efforts taken by such manufacturer or provider to implement sections 255, 716, and 718, including the following:

(i) Information about the manufacturer’s or pro- vider’s efforts to consult with individuals with disabil- ities.

(ii) Descriptions of the accessibility features of its products and services.

(iii) Information about the compatibility of such products and services with peripheral devices or spe- cialized customer premise equipment commonly used by individuals with disabilities to achieve access.

(B) An officer of a manufacturer or provider shall submit to the Commission an annual certification that records are being kept in accordance with subparagraph (A).

(C) After the filing of a formal or informal complaint against a manufacturer or provider, the Commission may re- quest, and shall keep confidential, a copy of the records main- tained by such manufacturer or provider pursuant to subpara- graph (A) of this paragraph that are directly relevant to the equipment or service that is the subject of such complaint.

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390Sec. 717 COMMUNICATIONS ACT OF 1934

(6) FAILURE TO ACT.—If the Commission fails to carry out any of its responsibilities to act upon a complaint in the man- ner prescribed in paragraph (3), the person that filed such complaint may bring an action in the nature of mandamus in the United States Court of Appeals for the District of Columbia to compel the Commission to carry out any such responsibility.

(7) COMMISSION JURISDICTION.—The limitations of section 255(f) shall apply to any claim that alleges a violation of sec- tion 255, 716, or 718. Nothing in this paragraph affects or lim- its any action for mandamus under paragraph (6) or any ap- peal pursuant to section 402(b)(10).

(8) PRIVATE RESOLUTIONS OF COMPLAINTS.—Nothing in the Commission’s rules or this Act shall be construed to preclude a person who files a complaint and a manufacturer or provider from resolving a formal or informal complaint prior to the Commission’s final determination in a complaint proceeding. In the event of such a resolution, the parties shall jointly request dismissal of the complaint and the Commission shall grant such request. (b) REPORTS TO CONGRESS.—

(1) IN GENERAL.—Every two years after the date of enact- ment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Commission shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives a report that includes the following:

(A) An assessment of the level of compliance with sec- tions 255, 716, and 718.

(B) An evaluation of the extent to which any accessi- bility barriers still exist with respect to new communica- tions technologies.

(C) The number and nature of complaints received pursuant to subsection (a) during the two years that are the subject of the report.

(D) A description of the actions taken to resolve such complaints under this section, including forfeiture pen- alties assessed.

(E) The length of time that was taken by the Commis- sion to resolve each such complaint.

(F) The number, status, nature, and outcome of any actions for mandamus filed pursuant to subsection (a)(6) and the number, status, nature, and outcome of any ap- peals filed pursuant to section 402(b)(10).

(G) An assessment of the effect of the requirements of this section on the development and deployment of new communications technologies. (2) PUBLIC COMMENT REQUIRED.—The Commission shall

seek public comment on its tentative findings prior to submis- sion to the Committees of the report under this subsection. (c) COMPTROLLER GENERAL ENFORCEMENT STUDY.—

(1) IN GENERAL.—The Comptroller General shall conduct a study to consider and evaluate the following:

(A) The Commission’s compliance with the require- ments of this section, including the Commission’s level of

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391 Sec. 717COMMUNICATIONS ACT OF 1934

compliance with the deadlines established under and pur- suant to this section and deadlines for acting on com- plaints pursuant to subsection (a).

(B) Whether the enforcement actions taken by the Commission pursuant to this section have been appro- priate and effective in ensuring compliance with this sec- tion.

(C) Whether the enforcement provisions under this section are adequate to ensure compliance with this sec- tion.

(D) Whether, and to what extent (if any), the require- ments of this section have an effect on the development and deployment of new communications technologies. (2) REPORT.—Not later than 5 years after the date of en-

actment of the Twenty-First Century Communications and Video Accessibility Act of 2010, the Comptroller General shall submit to the Committee on Commerce, Science, and Transpor- tation of the Senate and the Committee on Energy and Com- merce of the House of Representatives a report on the results of the study required by paragraph (1), with recommendations for how the enforcement process and measures under this sec- tion may be modified or improved. (d) CLEARINGHOUSE.—Within one year after the date of enact-

ment of the Twenty-First Century Communications and Video Ac- cessibility Act of 2010, the Commission shall, in consultation with the Architectural and Transportation Barriers Compliance Board, the National Telecommunications and Information Administration, trade associations, and organizations representing individuals with disabilities, establish a clearinghouse of information on the avail- ability of accessible products and services and accessibility solu- tions required under sections 255, 716, and 718. Such information shall be made publicly available on the Commission’s website and by other means, and shall include an annually updated list of prod- ucts and services with access features.

(e) OUTREACH AND EDUCATION.—Upon establishment of the clearinghouse of information required under subsection (d), the Commission, in coordination with the National Telecommunications and Information Administration, shall conduct an informational and educational program designed to inform the public about the availability of the clearinghouse and the protections and remedies available under sections 255, 716, and 718.

[Note: Section 104(a) of Public Law 111–260 provides for an amendment to insert a new section 718 to the end of title VIII. Subsection (b) of section 104 of such Public Law provides that ‘‘[s]ection 718 of the Communications Act of 1934, as added by sub- section (a), shall take effect 3 years after the date of enactment of this Act.’’. Effective October 8, 2013, section 718 reads as follows:]

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392Sec. 718 COMMUNICATIONS ACT OF 1934

SEC. 718. ƒ47 U.S.C. 619≈ INTERNET BROWSERS BUILT INTO TELE- PHONES USED WITH PUBLIC MOBILE SERVICES.

(a) ACCESSIBILITY.—If a manufacturer of a telephone used with public mobile services (as such term is defined in section 710(b)(4)(B)) includes an Internet browser in such telephone, or if a provider of mobile service arranges for the inclusion of a browser in telephones to sell to customers, the manufacturer or provider shall ensure that the functions of the included browser (including the ability to launch the browser) are accessible to and usable by in- dividuals who are blind or have a visual impairment, unless doing so is not achievable, except that this subsection shall not impose any requirement on such manufacturer or provider—

(1) to make accessible or usable any Internet browser other than a browser that such manufacturer or provider includes or arranges to include in the telephone; or

(2) to make Internet content, applications, or services acces- sible or usable (other than enabling individuals with disabil- ities to use an included browser to access such content, applica- tions, or services). (b) INDUSTRY FLEXIBILITY.—A manufacturer or provider may

satisfy the requirements of subsection (a) with respect to such tele- phone or services by—

(1) ensuring that the telephone or services that such manu- facture or provider offers is accessible to and usable by individ- uals with disabilities without the use of third party applica- tions, peripheral devices, software, hardware, or customer prem- ises equipment; or

(2) using third party applications, peripheral devices, soft- ware, hardware, or customer premises equipment that is avail- able to the consumer at nominal cost and that individuals with disabilities can access.

SEC. 719. ø47 U.S.C. 620¿ RELAY SERVICES FOR DEAF-BLIND INDIVID- UALS.

(a) IN GENERAL.—Within 6 months after the date of enactment of the Twenty-First Century Communications and Video Accessi- bility Act of 2010, the Commission shall establish rules that define as eligible for relay service support those programs that are ap- proved by the Commission for the distribution of specialized cus- tomer premises equipment designed to make telecommunications service, Internet access service, and advanced communications, in- cluding interexchange services and advanced telecommunications and information services, accessible by low-income individuals who are deaf-blind.

(b) INDIVIDUALS WHO ARE DEAF-BLIND DEFINED.—For purposes of this subsection, the term ‘‘individuals who are deaf-blind’’ has the same meaning given such term in the Helen Keller National Center Act, as amended by the Rehabilitation Act Amendments of 1992 (29 U.S.C. 1905(2)).

(c) ANNUAL AMOUNT.—The total amount of support the Com- mission may provide from its interstate relay fund for any fiscal year may not exceed $10,000,000.

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الولايات المتحدة الأمريكية

US307

Communications Act of 1934, Title 47 U.S.C., Section 151 et. seq (as amended by Public Law 112–96, enacted February 22, 2012)