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H.R. 1856: Modern Television Act of 2021


The text of the bill below is as of Mar 11, 2021 (Introduced).


I

117th CONGRESS

1st Session

H. R. 1856

IN THE HOUSE OF REPRESENTATIVES

March 11, 2021

(for himself and Ms. Eshoo) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To repeal certain provisions of the Communications Act of 1934, title 17 of the United States Code, and certain regulations, to allow for interim carriage of television broadcast signals, and for other purposes.

1.

Short title

This Act may be cited as the Modern Television Act of 2021.

2.

Agreements for carriage of broadcast programming

(a)

Agreements for carriage of broadcast programming

Section 325 of the Communications Act of 1934 (47 U.S.C. 325) is amended—

(1)

in subsection (b)(3)(C)—

(A)

by striking clauses (ii), (iii), and (iv); and

(B)

by redesignating clauses (v) and (vi) as clauses (ii) and (iii), respectively; and

(2)

by adding at the end the following:

(f)

Requirements for marketplace agreements

(1)

Negotiation requirements

(A)

In general

Not later than 90 days after the date of the enactment of the Modern Television Act of 2021, the Commission shall, by regulation—

(i)

require a television broadcast station and multichannel video programming distributor (and any large station group or qualified MVPD buying group negotiating for a marketplace agreement on behalf of a television broadcast station or multichannel video programming distributor, respectively) to negotiate in good faith in any effort to reach a marketplace agreement; and

(ii)

prohibit a television broadcast station from coordinating negotiations or negotiating on a joint basis with another television broadcast station in the same local market in an effort to reach a marketplace agreement with a multichannel video programming distributor, unless such stations are directly or indirectly under common de jure control permitted under the regulations of the Commission.

(B)

Good faith requirements

The regulations promulgated under paragraph (1)(A) shall provide—

(i)

that it is a violation of the requirement under paragraph (1)(A)(i)—

(I)

for a multichannel video programming distributor, a qualified MVPD buying group, a television broadcast station, or a large station group to refuse to declare an impasse for the sole purpose of avoiding binding arbitration under subsection (g), as added by the Modern Television Act of 2021; or

(II)

for a large station group to prohibit a qualified MVPD buying group from permitting a multichannel video programming distributor with which the large station group has an existing marketplace agreement to join a new marketplace agreement negotiated by the large station group and the qualified MVPD buying group upon the expiration of the existing marketplace agreement, if the multichannel video programming distributor was unable to join the new marketplace agreement at the time of the execution of the agreement because of the existing marketplace agreement;

(ii)

that is not a violation of the requirement under paragraph (1)(A)(i)—

(I)

for a television broadcast station or large station group to enter into marketplace agreements containing different terms and conditions, including price terms and royalty fees, with different multichannel video programming distributors or with different qualified MVPD buying groups if such different terms and conditions are based on competitive marketplace considerations; or

(II)

for a multichannel video programming distributor or a qualified MVPD buying group to enter into marketplace agreements containing different terms and conditions, including price terms and royalty fees, with different television broadcast stations or with different large station groups if such different terms and conditions are based on competitive marketplace considerations;

(iii)

that a multichannel video programming distributor may satisfy its obligations under paragraph (1)(A)(i) by designating a qualified MVPD buying group to negotiate on its behalf, so long as the qualified MVPD buying group itself negotiates in good faith; and

(iv)

that a qualified MVPD buying group may satisfy any obligations under paragraph (1)(A)(i) to designate a representative with authority to make binding representations by designating such a representative that can make binding representations on the qualified MVPD buying group’s behalf.

(2)

Interim carriage

Not later than 90 days after the date of the enactment of the Modern Television Act of 2021, the Commission shall, by regulation, require a multichannel video programming distributor to retransmit a signal of a television broadcast station and the television broadcast station to permit the retransmission of that signal—

(A)

for a period not longer than 60 days beginning on the date on which a marketplace agreement entered into by the television broadcast station and the multichannel video programming distributor (or by any large station group or qualified MVPD buying group negotiating for a marketplace agreement on behalf of a television broadcast station or multichannel video programming distributor, respectively) expires; and

(B)

under the terms and conditions of such expired agreement.

(3)

Retroactivity of marketplace agreement

Not later than 90 days after the date of the enactment of the Modern Television Act of 2021, the Commission shall require, by regulation, each marketplace agreement entered into on or after such date of enactment by a television broadcast station and a multichannel video programming distributor (or by any large station group or qualified MVPD buying group negotiating for a marketplace agreement on behalf of a television broadcast station or multichannel video programming distributor, respectively) to include a clause making the terms of the agreement retroactive to the expiration date of the most recent marketplace agreement entered into by or on behalf of the station and the distributor if the station and the distributor—

(A)

had previously entered into a marketplace agreement; and

(B)

are required to retransmit a signal or permit the retransmission of a signal, as the case may be, under paragraph (2) or subsection (g), as added by the Modern Television Act of 2021.

(4)

Prohibition on requiring certain payments

Not later than 90 days after the date of the enactment of the Modern Television Act of 2021, the Commission shall, by regulation, prohibit a television broadcast station from requiring payment, either directly or indirectly, from a multichannel video programming distributor for customers of the multichannel video programming distributor who do not receive the signals of the television broadcast station from that distributor.

(5)

Limitation

The requirements under this subsection do not apply with respect to mandatory carriage of the signal of a television broadcast station that elects mandatory carriage under section 338, 614, or 615.

(6)

Definitions

In this subsection:

(A)

Large station group

The term large station group means a group of television broadcast stations that—

(i)

are directly or indirectly under common de jure control permitted by the regulations of the Commission;

(ii)

generally negotiate agreements for retransmission consent under this section as a single entity; and

(iii)

include only television broadcast stations that collectively have a national audience reach of more than 20 percent.

(B)

Local market

The term local market has the meaning given such term in section 122(j) of title 17, United States Code.

(C)

Marketplace agreement

The term marketplace agreement means an agreement, or agreements, for—

(i)

the exclusive right under section 106 of title 17, United States Code, to transmit a performance or display of a work embodied in primary transmission (as defined in section 111(f) of such title) of a television broadcast station and the royalty fee payable; or

(ii)

retransmission consent under subsection (b), as in effect before the repeal made by the Modern Television Act of 2021.

(D)

Multichannel video programming distributor

The term multichannel video programming distributor has the meaning given such term in section 602.

(E)

Qualified MVPD buying group

The term qualified MVPD buying group means an entity that, with respect to a negotiation with a large station group for retransmission consent under this section—

(i)

negotiates on behalf of two or more multichannel video programming distributors—

(I)

none of which is a multichannel video programming distributor that serves more than 500,000 subscribers nationally; and

(II)

that do not collectively serve more than 25 percent of all households served by multichannel video programming distributors in any single local market in which the applicable large station group operates; and

(ii)

negotiates agreements for such retransmission consent—

(I)

that contain standardized contract provisions, including billing structures and technical quality standards, for each multichannel video programming distributor on behalf of which the entity negotiates; and

(II)

under which the entity assumes liability to remit to the applicable large station group all fees received from the multichannel video programming distributors on behalf of which the entity negotiates.

(F)

Television broadcast station

The term television broadcast station means an over-the-air commercial or noncommercial television broadcast station licensed by the Commission under subpart E of part 73 of title 47, Code of Federal Regulations, except that such term does not include a low-power or translator television station.

.

(b)

Effective date

This section, and the amendments made by this section, shall take effect on the date that is 90 days after the date of the enactment of this Act.

3.

Repeal of regulatory intervention in the television marketplace under the communications act of 1934

(a)

Repeal

The following sections of the Communications Act of 1934 (47 U.S.C. 151 et seq.) are hereby repealed:

(1)

Section 325(b) (47 U.S.C. 325(b)).

(2)

Section 325(e) (47 U.S.C. 325(e)).

(3)

Section 339 (47 U.S.C. 339).

(4)

Section 340 (47 U.S.C. 340).

(5)

Section 341 (47 U.S.C. 341).

(6)

Section 342 (47 U.S.C. 342).

(7)

Section 612 (47 U.S.C. 532).

(8)

Section 712 (47 U.S.C. 612).

(b)

Additional amendments

(1)

Section 338

Section 338 of the Communications Act of 1934 (47 U.S.C. 338) is amended—

(A)

in subsection (a)—

(i)

in paragraph (1)—

(I)

by inserting or under a marketplace agreement (as that term is defined in section 325), after Code,; and

(II)

by striking , subject to section 325(b);

(ii)

in paragraph (2), by striking 501(f) each place it appears and inserting 501(e);

(iii)

in paragraph (3)—

(I)

by striking whose signals and all that follows through of title 17, United States Code,; and

(II)

by inserting or a marketplace agreement after such title;

(iv)

by amending paragraph (5) to read as follows:

(5)

Nondiscrimination in carriage of high definition signals of noncommercial educational television stations

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 of any secondary transmission 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.

; and

(B)

in subsection (d), by inserting seeking carriage under subsection (a)(1) after signal of a local television broadcast station;

(C)

by striking subsection (h);

(D)

by redesignating subsections (i), (j), (k), and (l) as subsections (h), (i), (j), and (k), respectively;

(E)

in subsection (j), as so redesignated—

(i)

by striking paragraph (1);

(ii)

by redesignating paragraphs (2), (3), (4), (5), (6), (7), (8), (9), and (10) as paragraphs (1), (2), (3), (4), (5), (6), (7), (8), and (9), respectively;

(iii)

in paragraph (3), as so redesignated, by striking 122(j) and inserting 122(g);

(iv)

in paragraph (6), as so redesignated, by striking 119(d) and inserting 111(f);

(v)

in paragraph (7), as so redesignated, by striking 119(d) and inserting 111(f);

(vi)

in paragraph (8), as so redesignated, by striking 122(j) and inserting 122(g); and

(vii)

in paragraph (9), as so redesignated, by striking 325(b)(7) and inserting 325; and

(F)

in subsection (k), as so redesignated, by striking paragraph (5).

(2)

Section 623

Section 623 of the Communications Act of 1934 (47 U.S.C. 543) is amended—

(A)

by striking subsections (a), (b), (c), (d), (g), (h), (i), (j), (k), (l), (m), (n), and (o);

(B)

by redesignating subsections (e) and (f) as subsections (a) and (b), respectively; and

(C)

by adding at the end the following:

(c)

Regulation of rates and broadcast signal carriage

No Federal agency, State, or franchising authority may regulate—

(1)

the rates for the provision of multichannel video programming services of a multichannel video programming distributor; or

(2)

the retransmission of television broadcast signals by a multichannel video programming distributor except in accordance with the requirements of sections 325, 338, 614, and 615.

.

(c)

Conforming amendments

(1)

Section 343

Section 343 of the Communications Act of 1934 (47 U.S.C. 343) is redesignated as section 339 of such Act.

(2)

Section 615

Section 615 of the Communications Act of 1934 (47 U.S.C. 535) is amended—

(A)

by striking subsection (f); and

(B)

in subsection (l), by striking paragraph (1) and inserting the following:

(1)

Qualified noncommercial educational television station

(A)

In general

The term qualified noncommercial educational television station means any full-power television broadcast station which—

(i)

under the rules and regulations of the Commission in effect on March 29, 1990, is licensed by the Commission as a noncommercial educational television broadcast station and is owned and operated by a public agency, nonprofit foundation, nonprofit corporation, or nonprofit association; or

(ii)

is owned and operated by a municipality and transmits predominantly noncommercial programs for educational purposes.

(B)

Inclusions

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 translator if such station or translator is licensed to a channel reserved for noncommercial educational use pursuant to section 73.606 of title 47, Code of Federal Regulations, or any successor regulations thereto; and

(iii)

such stations and translators operating on channels not so reserved as the Commission determines are qualified as noncommercial educational stations.

.

(3)

Section 621

Section 621(b)(3)(D) of the Communications Act of 1934 (47 U.S.C. 541(b)(3)(D)) is amended by striking sections 611 and 612 and inserting section 611.

(4)

Section 622

Section 622(c) of the Communications Act of 1934 (47 U.S.C. 542(c)) is amended by striking pursuant to section 623.

(5)

Section 625

Section 625 of the Communications Act of 1934 (47 U.S.C. 545) is amended—

(A)

in subsection (c)—

(i)

by striking rearrange, replace, and inserting replace;

(ii)

in paragraph (1), by striking ; or and inserting a period;

(iii)

by striking paragraph (2); and

(iv)

by striking franchise if— and all that follows through such service is no longer and inserting franchise if such service is no longer; and

(B)

in subsection (d), by striking , if the rates and all that follows and inserting a period.

(6)

Section 632

Section 632(c) of the Communications Act of 1934 (47 U.S.C. 552(c)) is amended by striking section 623(b)(6) or.

(7)

Section 638

Section 638 of the Communications Act of 1934 (47 U.S.C. 558) is amended by striking governmental use or on any other channel obtained under section 612 or under similar arrangements and inserting or governmental use.

(8)

Section 653

Section 653 of the Communications Act of 1934 (47 U.S.C. 573) is amended—

(A)

in subsection (b)(1)—

(i)

in subparagraph (C), by adding and at the end; and

(ii)

by striking subparagraph (D) and redesignating subparagraph (E) as subparagraph (D); and

(B)

in subsection (c)(1)—

(i)

in subparagraph (A)—

(I)

by striking (other than subsection (a) thereof); and

(II)

by striking 623(f) and inserting 623(b);

(ii)

in subparagraph (B), by striking , and section 325 of title III,; and

(iii)

in subparagraph (C)—

(I)

by striking sections 612 and 617 and inserting section 617; and

(II)

by striking 623(f) and inserting 623(b).

4.

Binding arbitration

Section 325 of the Communications Act of 1934, as amended by sections 2 and 3, is further amended by adding at the end the following:

(g)

Binding arbitration

(1)

Requirement

Beginning on the date that is 90 days after the date on which this subsection takes effect, the Commission shall, by regulation—

(A)

provide that the Commission may require a television broadcast station and multichannel video programming distributor negotiating a marketplace agreement (and any large station group or qualified MVPD buying group negotiating for a marketplace agreement on behalf of a television broadcast station or multichannel video programming distributor, respectively) to submit to binding arbitration—

(i)

upon—

(I)

a declaration of an impasse in negotiations by all parties negotiating the agreement;

(II)

a preliminary finding by the Commission of a violation of the good faith requirement under subsection (f)(1)(A)(i); or

(III)

the failure of the television broadcast station and multichannel programming distributor (or any large station group or qualified MVPD buying group negotiating for a marketplace agreement on behalf of a television broadcast station or multichannel video programming distributor, respectively) to reach a marketplace agreement by the date that is 60 days after the date on which a marketplace agreement entered into by the television broadcast station and the multichannel video programming distributor (or by any large station group or qualified MVPD buying group negotiating for a marketplace agreement on behalf of a television broadcast station or multichannel video programming distributor, respectively) expires; and

(ii)

in a form substantially similar to that imposed in Section VII of Appendix A of the Memorandum Opinion and Order in the matter of Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. For Consent to Assign Licenses and Transfer Control of Licensees that was adopted by the Commission on January 18, 2011 (FCC 11–4); and

(B)

provide that the Commission may require a multichannel video programming distributor to retransmit a signal of a television broadcast station and the television broadcast station to permit the retransmission of that signal—

(i)

during any period in which the television broadcast station and the multichannel video programming distributor (or any large station group or qualified MVPD buying group negotiating for a marketplace agreement on behalf of a television broadcast station or multichannel video programming distributor, respectively) are required to submit to binding arbitration under subparagraph (A); and

(ii)

in accordance with the interim carriage provisions imposed in Section VII of Appendix A of the Memorandum Opinion and Order described under subparagraph (A)(ii).

(2)

Definitions

In this subsection, the terms large station group, marketplace agreement, multichannel video programming distributor, qualified MVPD buying group, and television broadcast station have the meaning given those terms in subsection (f).

.

5.

Repeal of regulatory intervention in the copyright act

(a)

In general

(1)

Repeal

Section 119 of title 17, United States Code, is hereby repealed.

(2)

Conforming amendment

The table of sections at the beginning of chapter 1 of title 17, United States Code, is amended by striking the item related to section 119.

(b)

Section 111

Section 111 of title 17, United States Code, is amended—

(1)

in subsection (a)(4), by striking section 119 or;

(2)

in subsection (c)—

(A)

by striking broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico and inserting qualified broadcast station each place it appears; and

(B)

in paragraph (1), by striking where the carriage and all that follows before the period at the end;

(3)

in subsection (d)(1)(A), by striking the second sentence; and

(4)

in subsection (f)—

(A)

in paragraph (4), by striking 122(j)(2)(C) and inserting 122(g)(2)(C); and

(B)

by adding at the end, the following:

(14)

Qualified broadcast station

The term qualified broadcast station means a broadcast station licensed by the Federal Communications Commission, or by an appropriate governmental authority of Canada or Mexico, that elects mandatory carriage under section 614 or 615 of the Communications Act of 1934.

(15)

Satellite carrier

The term satellite carrier means an entity that uses the facilities of a satellite or satellite service licensed by the Federal Communications Commission and operates in the Fixed-Satellite Service or the Direct Broadcast Satellite Service under part 25 of title 47, Code of Federal Regulations, to establish and operate a channel of communications for point-to-multipoint distribution of television station signals, and that owns or leases a capacity or service on a satellite in order to provide such point-to-multipoint distribution, except to the extent that such entity provides such distribution pursuant to tariff under the Communications Act of 1934 (47 U.S.C. 151 et seq.), other than for private home viewing.

.

(c)

Section 122

Section 122 of title 17, United States Code, is amended—

(1)

by striking television broadcast stations each place it appears and inserting qualified television broadcast stations;

(2)

by striking television broadcast station each place it appears and inserting qualified television broadcast station;

(3)

in subsection (a)—

(A)

in paragraph (1)—

(i)

in subparagraph (A), by striking the semicolon at the end and inserting ; and;

(ii)

by striking subparagraph (B); and

(iii)

by redesignating subparagraph (C) as subparagraph (B);

(B)

by striking paragraphs (2), (3), and (5);

(C)

by redesignating paragraph (4) as paragraph (2); and

(D)

in paragraph (2), as so redesignated, by striking Special exceptions.—A secondary transmission of a performance or display and all that follows through In the case of a system and inserting Special exception.—In the case of a system;

(4)

by striking subsections (b), (f), and (g);

(5)

by redesignating subsections (c), (d), (e), (h), (i), and (j) as subsections (b), (c), (d), (e), (f), and (g), respectively;

(6)

in subsection (c), as so redesignated—

(A)

by striking television broadcast station each place it appears and inserting qualified television broadcast station;

(B)

by striking television broadcast signals and inserting signal of a qualified television broadcast stations; and

(C)

by striking , if the satellite carrier and all that follows before the period at the end;

(7)

in subsection (d), as so redesignated, by striking television broadcast station each place it appears and inserting qualified television broadcast station;

(8)

in subsection (f), as so redesignated, by striking and section 119; and

(9)

in subsection (g), as so redesignated—

(A)

in paragraph (2)(E), by striking 338(l) and inserting 338(k);

(B)

by amending paragraph (4) to read as follows:

(4)

Network station

The term network station means—

(A)

a television station licensed by the Federal Communications Commission, including any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast by a network station, that is owned or operated by, or affiliated with, one or more of the television networks in the United States that offer an interconnected program service on a regular basis for 15 or more hours per week to at least 25 of its affiliated television licensees in 10 or more States; or

(B)

a noncommercial educational broadcast station (as defined in section 397 of the Communications Act of 1934);

except that the term does not include the signal of the Alaska Rural Communications Service, or any successor entity to that service.

.

(C)

by redesignating paragraphs (5), (6), and (7) as paragraphs (6), (7), and (8), respectively;

(D)

by inserting after paragraph (4), the following:

(5)

Non-network station

The term non-network station means a television station, other than a network station, licensed by the Federal Communications Commission, that is secondarily transmitted by a satellite carrier.

; and

(E)

in paragraph (8), as so redesignated—

(i)

in the heading, by striking Television broadcast station and inserting Qualified television broadcast station;

(ii)

in subparagraph (A), by inserting , that elects mandatory carriage pursuant to section 338 of the Communications Act of 1934 after Regulations; and

(iii)

in subparagraph (B)—

(I)

by inserting that elects mandatory carriage pursuant to section 338 of the Communications Act of 1934, after Mexico; and

(II)

by striking as defined in section 119(d)(2)(A).

(d)

Conforming amendments

Title 17, United States Code, is amended—

(1)

in section 501—

(A)

by striking local service area each place it appears and inserting designated market area;

(B)

by striking subsection (e);

(C)

by redesignating subsection (f) as subsection (e); and

(D)

by adding at the end the following:

(f)

In this section, the term designated market area means a designated market area, as determined by Nielsen Media Research and published in the 1999–2000 Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication.

;

(2)

in section 708(a)(10), by striking 119 or;

(3)

in section 801—

(A)

in subsection (b)(1), by striking 119,; and

(B)

by striking , 119, each place it appears;

(4)

in section 803—

(A)

in subsection (b)(1)(A)(i), in the matter preceding subclause (I), by striking , 119;

(B)

in subsection (d)(2)(C)(i), by striking , 119;

(C)

in subsection (e)(2), by striking 118, or 119 and inserting or 118; and

(5)

in section 804—

(A)

in subsection (a), by striking , 119; and

(B)

in subsection (b)(8), by striking , 119,.

6.

Repeal of commission’s rules related to regulatory intervention

The Federal Communications Commission shall take all actions necessary to—

(1)

repeal section 73.658 of the Commission’s rules (47 CFR 73.658);

(2)

repeal subpart F of part 76 of the Commission’s rules; and

(3)

modify subpart S of part 76 of the Commission’s rules by eliminating any requirements relating to network nonduplication and syndicated exclusivity for open video systems.

7.

Report

Section 13 of the Communications Act of 1934 (47 U.S.C. 163) is amended—

(1)

in subsection (b)—

(A)

in paragraph (4), by striking ; and and inserting a semicolon;

(B)

in paragraph (5), by striking the period at the end and inserting ; and; and

(C)

by adding at the end the following:

(6)

if the Commission determines under subsection (e)(2) that the totality of the measurements have presented a net negative impact in the two years preceding the report, include specific policies to improve market functioning.

; and

(2)

by adding at the end the following:

(e)

Comptroller general study

(1)

Study

Not later than 4 years after the date of the enactment of the Modern Television Act of 2021, and every two years thereafter, the Comptroller General of the United States, in consultation with the Commission, shall study the effect of the regime established under such Act, and the amendments made by such Act, by measuring—

(A)

the price consumers pay for video programming, adjusted to reflect national monetary inflation or deflation;

(B)

the satisfaction of consumers with the quality of video programming and the services of multichannel video programming distributors;

(C)

the—

(i)

number of interruptions to the distribution of programming to consumers because of impasses in negotiations between multichannel video programming distributors and television broadcast stations;

(ii)

duration of each interruption; and

(iii)

number of consumers impacted by each interruption; and

(D)

consumer access to local programming, including news, weather, sports, and public, educational, and governmental programming.

(2)

Determination by commission

The Commission shall determine under the study described in paragraph (1) if the totality of the measurements described in such paragraph present a net positive, net negative, or indeterminate impact to consumers and to the marketplace.

(3)

Definitions

In this subsection, the terms video programming and multichannel video programming distributor have the meaning given those terms in section 602.

.

8.

Severability

If any provision of this Act or any amendment made by this Act, or any application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the amendments made by this Act, and the application of the provision or amendment to any other person or circumstance, shall not be affected.

9.

Effective date

Except as provided in section 2, this Act, and the amendments made by this Act, shall take effect on the date that is 42 months after the date of the enactment of this Act.