FCC Sticks With Rooftop Antennas For Distant Station Eligibility

But gives satellite operators chance for additional leverage in retrans negotiations
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The FCC Tuesday released a report and order with
rules implementing changes to satellite TV station signal carriage mandated by
Congress' renewal this year of the distant signal satellite compulsory license.
That includes one it says will "improve parity and competition between
satellite and cable operators," and the decision, backed by broadcasters,
to continue to use "outdoor antenna" for the definition of who can
get distant TV station signals.

The "improving parity" provision is the
one eliminating the requirement that satellite subs had to get an in-market
affiliate in order to be eligible to receive a significantly viewed
out-of-market signal via satellite. The order also eliminates the requirement
that satellite operators devote equivalent bandwidth to in-market stations as
they do out-of-market. That means a satellite operator can deliver the HD
signal of a significantly viewed out-of-market station without having to
provide the HD feed of the in-market station affiliated with the same network.

Broadcasters had opposed allowing the importation of the out-of-market significantly viewed station without carriage of the in-market, since it gives satellite operators a chance to import a signficantly viewed version of a network affiliate if the local one won't meet its retrans terms.

The FCC condeded that is a possibllity. "Our interpretation of the STELA's amendments to Sections 340(b)(1) and (b)(2) makes it possible for a satellite carrier to carry an SV network station, even in HD format, without also carrying the corresponding local in-market affiliate if that local station has not granted retransmission consent." ithe FCC said..

But the commission also said the significantly viewed station is usually only significantly viewed in some portions of a market. "We find it unlikely that an SV station could permanently substitute for a local in-market station, even in the provision of network programming to the market," said the FCC.

And in a little "take that" reference, the FCC pointed out that in another context (its defense of the retransmission consent regime against cable assertions the system is broken), "Broadcaster Associations have noted in a different proceeding [that] retransmission consent impasses resulting in loss of a local station are relatively rare and, when they do occur, they are usually short-lived. "

The commission promised to monitor for any unintended retrans consequences from its decision.

Also, as part of the implementation of STELA
(the Satellite Television Extension and Localism Act), the FCC has come up with
its procedures for predicting and measuring signal strength. Satellite operators
are allowed to import the distant version of a local affiliate to viewers who
cannot receive a sufficiently strong over-the-air version of the local affiliate
of that same network. Operators are allowed to do so under the compulsory
license that Congress reauthorized this year after a difficult run through the
legislative gauntlet--the license expired and had to be renewed under several
stop-gap measures.

The FCC will use the same model for predicting
signal strength, with some modifications, that it used in determining analog
signal strengths, including using outdoor antennas as a guide. The FCC said
that model has been accurate and reliable and well accepted. While
satellite operators had wanted the FCC to include interference from other TV
stations in determining that a signal was too weak, broadcasters were opposed
and the FCC agreed, saying that "a receiver's ability to provide service
in the presence of interfering signals is not relevant to the field strength
needed to provide service."

Satellite operators had also wanted the FCC to
change its standard for un-served household from one that could not
receive a viewable signal with an outdoor antenna--30 feet above ground--to
ones that could not receive such a signal with an indoor antenna. That change
could have enlarged the pool of eligible households (think basement sets with
tinfoil antennas). Broadcasters argued for retaining the old standard (local
stations did not want any more potential viewers siphoned off to
distant-signal versions of their network programming).

Satellite operators had argued that the fact that
the bill, as reauthorized, changed "outdoor antenna" to
"antenna" when talking about eligible households meant that it wanted
the FCC to broaden its definition to include indoor. Broadcasters had argued
that the change was immaterial and the FCC was required to stick with

The FCC disagreed with both, saying the bill gave
it the flexibility to look beyond outdoor, but not a mandate to do so. It
chose not to, it said, "the Commission has always assumed that households
will use the type of antenna that they need to achieve service; if an indoor
antenna is insufficient for a particular household, it generally will rely on a
rooftop antenna."

The commission also sought comment on its
congressional mandate to produce a report by Aug. 27, 2011, on in-state
broadcast programming. One of the ways that the satellite reauthorization bill
passed was after the report was promised to legislators concerned about
gerrymandered Nielsen Designated Market Areas (DMAs) that resulted in viewers
in one state getting an out-of-state station because it was in the DMA, rather
than the closest in-state station, which was not. The FCC uses DMAs to
determine which viewers are eligible to receive out-of-market signals.

The FCC was directed by Congress to study the
issue and to: "1) analyze the number of households in a State that receive
the signals of local broadcast stations assigned to a community of license
located in a different State; (2) evaluate the extent to which consumers in
each local market have access to in-state broadcast programming over-the-air or
from a multichannel video programming distributor; and (3) consider whether
there are alternatives to DMAs to define local markets that would provide
consumers with more in-state broadcast programming."

The FCC wants input on the "methodologies, metrics, data sources,
and level of granularity" of the study.