Goto Section: 27.1201 | 27.1203 | Table of Contents
FCC 27.1202
Revised as of December 4, 2012
Goto Year:2011 |
2013
§ 27.1202 Cable/BRS cross-ownership.
(a) Initial or modified authorizations for BRS stations may not be
granted to a cable operator if a portion of the BRS station's protected
services area is within the portion of the franchise area actually
served by the cable operator's cable system and the cable operator will
be using the BRS station as a multichannel video programming
distributor (as defined in § 76.64(d) of this chapter). No cable
operator may acquire such authorization either directly, or indirectly
through an affiliate owned, operated, or controlled by or under common
control with a cable operator if the cable operator will use the BRS
station as a multichannel video programming distributor.
(b) No licensee of a station in this service may lease transmission
time or capacity to a cable operator either directly, or indirectly
through an affiliate owned, operated, controlled by, or under common
control with a cable operator, if a portion of the BRS station's
protected services area is within the portion of the franchise area
actually served by the cable operator's cable system the cable operator
will use the BRS station as a multichannel video programming
distributor.
(c) Applications for new stations, station modifications, assignments
or transfers of control by cable operators of BRS stations shall
include a showing that no portion of the GSA of the BRS station is
within the portion of the franchise area actually served by the cable
operator's cable system, or of any entity indirectly affiliated, owned,
operated, controlled by, or under common control with the cable
operator. Alternatively, the cable operator may certify that it will
not use the BRS station to distribute multichannel video programming.
(d) In applying the provisions of this section, ownership and other
interests in BRS licensees or cable television systems will be
attributed to their holders and deemed cognizable pursuant to the
following criteria:
(1) Except as otherwise provided herein, partnership and direct
ownership interests and any voting stock interest amounting to 5% or
more of the outstanding voting stock of a corporate BRS licensee or
cable television system will be cognizable;
(2) Investment companies, as defined in 15 U.S.C. 80a-3, insurance
companies and banks holding stock through their trust departments in
trust accounts will be considered to have a cognizable interest only if
they hold 20% or more of the outstanding voting stock of a corporate
BRS licensee or cable television system, or if any of the officers or
directors of the BRS licensee or cable television system are
representatives of the investment company, insurance company or bank
concerned. Holdings by a bank or insurance company will be aggregated
if the bank or insurance company has any right to determine how the
stock will be voted. Holdings by investment companies will be
aggregated if under common management.
(3) Attribution of ownership interests in a BRS licensee or cable
television system that are held indirectly by any party through one or
more intervening corporations will be determined by successive
multiplication of the ownership percentages for each link in the
vertical ownership chain and application of the relevant attribution
benchmark to the resulting product, except that wherever the ownership
percentage for any link in the chain exceeds 50%, it shall not be
included for purposes of this multiplication. For purposes of paragraph
(d)(9) of this section, attribution of ownership interests in a BRS
licensee or cable television system that are held indirectly by any
party through one or more intervening organizations will be determined
by successive multiplication of the ownership percentages for each link
in the vertical ownership chain and application of the relevant
attribution benchmark to the resulting product, and the ownership
percentage for any link in the chain that exceeds 50% shall be included
for purposes of this multiplication. For example, except for purposes
of paragraph (d)(9) of this section, if A owns 10% of company X, which
owns 60% of company Y, which owns 25% of “Licensee,” then X's interest
in “Licensee” would be 25% (the same as Y's interest because X's
interest in Y exceeds 50%), and A's interest in “Licensee” would be
2.5% (0.1 × 0.25). Under the 5% attribution benchmark, X's interest in
“Licensee” would be cognizable, while A's interest would not be
cognizable. For purposes of paragraph (d)(9) of this section, X's
interest in “Licensee” would be 15% (0.6 × 0.25) and A's interest in
“Licensee” would be 1.5% (0.1 × 0.6 × 0.25). Neither interest would be
attributed under paragraph (d)(9) of this section.
(4) Voting stock interests held in trust shall be attributed to any
person who holds or shares the power to vote such stock, to any person
who has the sole power to sell such stock, and to any person who has
the right to revoke the trust at will or to replace the trustee at
will. If the trustee has a familial, personal or extra-trust business
relationship to the grantor or the beneficiary, the grantor or
beneficiary, as appropriate, will be attributed with the stock
interests held in trust. An otherwise qualified trust will be
ineffective to insulate the grantor or beneficiary from attribution
with the trust's assets unless all voting stock interests held by the
grantor or beneficiary in the relevant BRS licensee or cable television
system are subject to said trust.
(5) Subject to paragraph (d)(9) of this section, holders of non-voting
stock shall not be attributed an interest in the issuing entity.
Subject to paragraph (d)(9) of this section, holders of debt and
instruments such as warrants, convertible debentures, options or other
non-voting interests with rights of conversion to voting interests
shall not be attributed unless and until conversion is effected.
(6)(i) A limited partnership interest shall be attributed to a limited
partner unless that partner is not materially involved, directly or
indirectly, in the management or operation of the BRS or cable
television activities of the partnership and the licensee or system so
certifies. An interest in a Limited Liability Company (“LLC”) or
Registered Limited Liability Partnership (“RLLP”) shall be attributed
to the interest holder unless that interest holder is not materially
involved, directly or indirectly, in the management or operation of the
BRS or cable television activities of the partnership and the licensee
or system so certifies.
(ii) For a licensee or system that is a limited partnership to make the
certification set forth in paragraph (d)(6)(i) of this section, it must
verify that the partnership agreement or certificate of limited
partnership, with respect to the particular limited partner exempt from
attribution, establishes that the exempt limited partner has no
material involvement, directly or indirectly, in the management or
operation of the BRS or cable television activities of the partnership.
For a licensee or system that is an LLC or RLLP to make the
certification set forth in paragraph (d)(6)(i) of this section, it must
verify that the organizational document, with respect to the particular
interest holder exempt from attribution, establishes that the exempt
interest holder has no material involvement, directly or indirectly, in
the management or operation of the BRS or cable television activities
of the LLC or RLLP. Irrespective of the terms of the certificate of
limited partnership or partnership agreement, or other organizational
document in the case of an LLC or RLLP, however, no such certification
shall be made if the individual or entity making the certification has
actual knowledge of any material involvement of the limited partners,
or other interest holders in the case of an LLC or RLLP, in the
management or operation of the BRS or cable television businesses of
the partnership or LLC or RLLP.
(iii) In the case of an LLC or RLLP, the licensee or system seeking
installation shall certify, in addition, that the relevant state
statute authorizing LLCs permits an LLC member to insulate itself as
required by our criteria.
(7) Officers and directors of a BRS licensee or cable television system
are considered to have a cognizable interest in the entity with which
they are so associated. If any such entity engages in businesses in
addition to its primary business of BRS or cable television service, it
may request the Commission to waive attribution for any officer or
director whose duties and responsibilities are wholly unrelated to its
primary business. The officers and directors of a parent company of a
BRS licensee or cable television system, with an attributable interest
in any such subsidiary entity, shall be deemed to have a cognizable
interest in the subsidiary unless the duties and responsibilities of
the officer or director involved are wholly unrelated to the BRS
licensee or cable television system subsidiary, and a statement
properly documenting this fact is submitted to the Commission. The
officers and directors of a sister corporation of a BRS licensee or
cable television system shall not be attributed with ownership of these
entities by virtue of such status.
(8) Discrete ownership interests will be aggregated in determining
whether or not an interest is cognizable under this section. An
individual or entity will be deemed to have a cognizable investment if:
(i) The sum of the interests held by or through “passive investors” is
equal to or exceeds 20 percent; or
(ii) The sum of the interests other than those held by or through
“passive investors” is equal to or exceeds 5 percent; or
(iii) The sum of the interests computed under paragraph (d)(8)(i) of
this section plus the sum of the interests computed under paragraph
(d)(8)(ii) of this section equal to or exceeds 20 percent.
(9) Notwithstanding paragraphs (d)(5) and (d)(6) of this section, the
holder of an equity or debt interest or interests in a BRS licensee or
cable television system subject to the BRS/cable cross-ownership rule
(“interest holder”) shall have that interest attributed if:
(i) The equity (including all stockholdings, whether voting or
nonvoting, common or preferred) and debt interest or interests, in the
aggregate, exceed 33 percent of the total asset value (all equity plus
all debt) of that BRS licensee or cable television system; and
(ii) The interest holder also holds an interest in a BRS licensee or
cable television system that is attributable under this section (other
than this paragraph) and which operates in any portion of the franchise
area served by that cable operator's cable system.
(10) The term “area served by a cable system” means any area actually
passed by the cable operator's cable system and which can be connected
for a standard connection fee.
(11) As used in this section “cable operator” shall have the same
definition as in § 76.5 of this chapter.
(e) The Commission will entertain requests to waive the restrictions in
paragraph (a) of this section where necessary to ensure that all
significant portions of the franchise area are able to obtain
multichannel video service.
(f) The provisions of paragraphs (a) through (e) of this section will
not apply to one BRS channel used to provide locally-produced
programming to cable headends. Locally-produced programming is
programming produced in or near the cable operator's franchise area and
not broadcast on a television station available within that franchise
area. A cable operator will be permitted one BRS channel for this
purpose, and no more than one BRS channel may be used by a cable
television company or its affiliate or lessor pursuant to this
paragraph. The licensee for a cable operator providing local
programming pursuant to a lease must include in a notice filed with the
Wireless Telecommunications Bureau a cover letter explicitly
identifying itself or its lessees as a local cable operator and stating
that the lease was executed to facilitate the provision of local
programming. The first application or the first lease notification in
an area filed with the Commission will be entitled to the exemption.
The limitations on one BRS channel per party and per area include any
cable/BRS operations or cable/EBS operations. The cable operator must
demonstrate in its BRS application that the proposed local programming
will be provided within one year from the date its application is
granted. Local programming service pursuant to a lease must be provided
within one year of the date of the lease or one year of grant of the
licensee's application for the leased channel, whichever is later. If a
BRS license for these purposes is granted and the programming is
subsequently discontinued, the license will be automatically forfeited
the day after local programming service is discontinued.
(g) Applications filed by cable television companies, or affiliates,
for BRS channels prior to February 8, 1990, will not be subject to the
prohibitions of this section. Applications filed on February 8, 1990,
or thereafter will be returned. Lease arrangements between cable and
BRS entities for which a lease or a firm agreement was signed prior to
February 8, 1990, will also not be subject to the prohibitions of this
section. Leases between cable television companies, or affiliates, and
BRS station licensees, conditional licensees, or applicants executed on
February 8, 1990, or thereafter, are invalid.
(1) Applications filed by cable operators, or affiliates, for BRS
channels prior to February 8, 1990, will not be subject to the
prohibitions of this section. Except as provided in paragraph (g)(2)of
this section, applications filed on February 8, 1990, or thereafter
will be returned. Lease arrangements between cable and BRS entities for
which a lease or a firm agreement was signed prior to February 8, 1990,
will also not be subject to the prohibitions of this section. Except as
provided in paragraph (g)(2) of this section, leases between cable
operators, or affiliates, and BRS/EBS station licensees, conditional
licensees, or applicants executed on or before February 8, 1990, or
thereafter are invalid.
(2) Applications filed by cable operators, or affiliates for BRS
channels after February 8, 1990, and prior to October 5, 1992, will not
be subject to the prohibition of this section, if, pursuant to the then
existing overbuild or rural exceptions, the applications were allowed
under the then existing cable/BRS cross-ownership prohibitions. Lease
arrangements between cable operators and BRS entities for which a lease
or firm agreement was signed after February 8, 1990, and prior to
October 5, 1992, will not be subject to the prohibitions of this
section, if, pursuant to the then existing rural and overbuild
exceptions, the lease arrangements were allowed.
(3) The limitations on cable television ownership in this section do
not apply to any cable operator in any franchise area in which a cable
operator is subject to effective competition as determined under
section 623(l) of the Communications Act.
[ 69 FR 72034 , Dec. 10, 2004, as amended at 71 FR 35190 , June 19, 2006]
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Goto Year: 2011 |
2013
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