Goto Section: 25.601 | 25.701 | Table of Contents
FCC 25.701
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 25.701 Public interest obligations.
(a) DBS providers are subject to the public interest obligations set forth
in paragraphs (b), (c), (d), (e) and (f) of this section. As used in this
section, DBS providers are any of the following:
(1) Entities licensed to operate satellites in the 12.2 to 12.7 GHz DBS
frequency bands; or
(2) Entities licensed to operate satellites in the Ku band Fixed-Satellite
Service and that sell or lease capacity to a video programming distributor
that offers service directly to consumers providing a sufficient number of
channels so that four percent of the total applicable programming channels
yields a set aside of at least one channel of non commercial programming
pursuant to paragraph (e) of this section, or
(3) Non U.S. licensed satellite operators in the Ku band that offer video
programming directly to consumers in the United States pursuant to an earth
station license issued under part 25 of this title and that offer a
sufficient number of channels to consumers so that four percent of the total
applicable programming channels yields a set aside of one channel of
noncommercial programming pursuant to paragraph (e) of this section, or
(4) Entities licensed to operate satellites in the 17/24 GHz BSS that offer
video programming directly to consumers or that sell or lease capacity to a
video programming distributor that offers service directly to consumers
providing a sufficient number of channels so that four percent of the total
applicable programming channels yields a set aside of at least one channel
of noncommercial programming pursuant to paragraph (e) of this section, or
(5) Non U.S. licensed satellite operators in the 17/24 GHz BSS that offer
video programming directly to consumers in the United States or that sell or
lease capacity to a video programming distributor that offers service
directly to consumers in the United States pursuant to an earth station
license issued under part 25 of this title and that offer a sufficient
number of channels to consumers so that four percent of the total applicable
programming channels yields a set aside of one channel of noncommercial
programming pursuant to paragraph (e) of this section.
(b) Political broadcasting requirements—
(1) Legally qualified candidates for public office for purposes of this
section are as defined in § 73.1940 of this chapter.
(2) DBS origination programming is defined as programming (exclusive of
broadcast signals) carried on a DBS facility over one or more channels and
subject to the exclusive control of the DBS provider.
(3) Reasonable access. (i) DBS providers must comply with section 312(a)(7)
of the Communications Act of 1934, as amended, by allowing reasonable access
to, or permitting purchase of reasonable amounts of time for, the use of
their facilities by a legally qualified candidate for federal elective
office on behalf of his or her candidacy.
(ii) Weekend access. For purposes of providing reasonable access, DBS
providers shall make facilities available for use by federal candidates on
the weekend before the election if the DBS provider has provided similar
access to commercial advertisers during the year preceding the relevant
election period. DBS providers shall not discriminate between candidates
with regard to weekend access.
(4) Use of facilities; equal opportunities. DBS providers must comply with
section 315 of the Communications Act of 1934, as amended, by providing
equal opportunities to legally qualified candidates for DBS origination
programming.
(i) General requirements. Except as otherwise indicated in § 25.701(b)(3), no
DBS provider is required to permit the use of its facilities by any legally
qualified candidate for public office, but if a DBS provider shall permit
any such candidate to use its facilities, it shall afford equal
opportunities to all other candidates for that office to use such
facilities. Such DBS provider shall have no power of censorship over the
material broadcast by any such candidate. Appearance by a legally qualified
candidate on any:
(A) Bona fide newscast;
(B) Bona fide news interview;
(C) 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
(D) On the spot coverage of bona fide news events (including, but not
limited to political conventions and activities incidental thereto) shall
not be deemed to be use of a DBS provider's facility. (Section 315(a) of the
Communications Act.)
(ii) Uses. As used in this section and § 25.701(c), the term “use” means a
candidate appearance (including by voice or picture) that is not exempt
under paragraphs (b)(3)(i)(A) through (b)(3)(i)(D) of this section.
(iii) Timing of request. A request for equal opportunities must be submitted
to the DBS provider within 1 week of the day on which the first prior use
giving rise to the right of equal opportunities occurred: Provided, however,
That where the person was not a candidate at the time of such first prior
use, he or she shall submit his or her request within 1 week of the first
subsequent use after he or she has become a legally qualified candidate for
the office in question.
(iv) Burden of proof. A candidate requesting equal opportunities of the DBS
provider or complaining of noncompliance to the Commission shall have the
burden of proving that he or she and his or her opponent are legally
qualified candidates for the same public office.
(v) Discrimination between candidates. In making time available to
candidates for public office, no DBS provider shall make any discrimination
between candidates in practices, regulations, facilities, or services for or
in connection with the service rendered pursuant to this part, or make or
give any preference to any candidate for public office or subject any such
candidate to any prejudice or disadvantage; nor shall any DBS provider make
any contract or other agreement that shall have the effect of permitting any
legally qualified candidate for any public office to use DBS origination
programming to the exclusion of other legally qualified candidates for the
same public office.
(c) Candidate rates—(1) Charges for use of DBS facilities. The charges, if
any, made for the use of any DBS facility by any person who is a legally
qualified candidate for any public office in connection with his or her
campaign for nomination for election, or election, to such office shall not
exceed:
(i) During the 45 days preceding the date of a primary or primary runoff
election and during the 60 days preceding the date of a general or special
election in which such person is a candidate, the lowest unit charge of the
DBS provider for the same class and amount of time for the same period.
(A) A candidate shall be charged no more per unit than the DBS provider
charges its most favored commercial advertisers for the same classes and
amounts of time for the same periods. Any facility practices offered to
commercial advertisers that enhance the value of advertising spots must be
disclosed and made available to candidates upon equal terms. Such practices
include but are not limited to any discount privileges that affect the value
of advertising, such as bonus spots, time sensitive make goods, preemption
priorities, or any other factors that enhance the value of the announcement.
(B) The Commission recognizes non preemptible, preemptible with notice,
immediately preemptible and run of schedule as distinct classes of time.
(C) DBS providers may establish and define their own reasonable classes of
immediately preemptible time so long as the differences between such classes
are based on one or more demonstrable benefits associated with each class
and are not based solely upon price or identity of the advertiser. Such
demonstrable benefits include, but are not limited to, varying levels of
preemption protection, scheduling flexibility, or associated privileges,
such as guaranteed time sensitive make goods. DBS providers may not use
class distinctions to defeat the purpose of the lowest unit charge
requirement. All classes must be fully disclosed and made available to
candidates.
(D) DBS providers may establish reasonable classes of preemptible with
notice time so long as they clearly define all such classes, fully disclose
them and make them available to candidates.
(E) DBS providers may treat non preemptible and fixed position as distinct
classes of time provided that they articulate clearly the differences
between such classes, fully disclose them, and make them available to
candidates.
(F) DBS providers shall not establish a separate, premium priced class of
time sold only to candidates. DBS providers may sell higher priced non
preemptible or fixed time to candidates if such a class of time is made
available on a bona fide basis to both candidates and commercial
advertisers, and provided such class is not functionally equivalent to any
lower priced class of time sold to commercial advertisers.
(G) [Reserved]
(H) Lowest unit charge may be calculated on a weekly basis with respect to
time that is sold on a weekly basis, such as rotations through particular
programs or dayparts. DBS providers electing to calculate the lowest unit
charge by such a method must include in that calculation all rates for all
announcements scheduled in the rotation, including announcements aired under
long term advertising contracts. DBS providers may implement rate increases
during election periods only to the extent that such increases constitute
“ordinary business practices,” such as seasonal program changes or changes
in audience ratings.
(I) DBS providers shall review their advertising records periodically
throughout the election period to determine whether compliance with this
section requires that candidates receive rebates or credits. Where
necessary, DBS providers shall issue such rebates or credits promptly.
(J) Unit rates charged as part of any package, whether individually
negotiated or generally available to all advertisers, must be included in
the lowest unit charge calculation for the same class and length of time in
the same time period. A candidate cannot be required to purchase advertising
in every program or daypart in a package as a condition for obtaining
package unit rates.
(K) DBS providers are not required to include non cash promotional
merchandising incentives in lowest unit charge calculations; provided,
however, that all such incentives must be offered to candidates as part of
any purchases permitted by the system. Bonus spots, however, must be
included in the calculation of the lowest unit charge calculation.
(L) Make goods, defined as the rescheduling of preempted advertising, shall
be provided to candidates prior to election day if a DBS provider has
provided a time sensitive make good during the year preceding the pre
election periods, respectively set forth in paragraph (c)(1)(i) of this
section, to any commercial advertiser who purchased time in the same class.
(M) DBS providers must disclose and make available to candidates any make
good policies provided to commercial advertisers. If a DBS provider places a
make good for any commercial advertiser or other candidate in a more
valuable program or daypart, the value of such make good must be included in
the calculation of the lowest unit charge for that program or daypart.
(ii) At any time other than the respective periods set forth in paragraph
(c)(1)(i) of this section, DBS providers may charge legally qualified
candidates for public office no more than the charges made for comparable
use of the facility by commercial advertisers. The rates, if any, charged
all such candidates for the same office shall be uniform and shall not be
rebated by any means, direct or indirect. A candidate shall be charged no
more than the rate the DBS provider would charge for comparable commercial
advertising. All discount privileges otherwise offered by a DBS provider to
commercial advertisers must be disclosed and made available upon equal terms
to all candidates for public office.
(2) If a DBS provider permits a candidate to use its facilities, it shall
make all discount privileges offered to commercial advertisers, including
the lowest unit charges for each class and length of time in the same time
period and all corresponding discount privileges, available on equal terms
to all candidates. This duty includes an affirmative duty to disclose to
candidates information about rates, terms, conditions and all value
enhancing discount privileges offered to commercial advertisers, as provided
herein. DBS providers may use reasonable discretion in making the
disclosure; provided, however, that the disclosure includes, at a minimum,
the following information:
(i) A description and definition of each class of time available to
commercial advertisers sufficiently complete enough to allow candidates to
identify and understand what specific attributes differentiate each class;
(ii) A description of the lowest unit charge and related privileges (such as
priorities against preemption and make goods prior to specific deadlines)
for each class of time offered to commercial advertisers;
(iii) A description of the DBS provider's method of selling preemptible time
based upon advertiser demand, commonly known as the “current selling
level,” with the stipulation that candidates will be able to purchase at
these demand generated rates in the same manner as commercial advertisers;
(iv) An approximation of the likelihood of preemption for each kind of
preemptible time; and
(v) An explanation of the DBS provider's sales practices, if any, that are
based on audience delivery, with the stipulation that candidates will be
able to purchase this kind of time, if available to commercial advertisers.
(3) Once disclosure is made, DBS providers shall negotiate in good faith to
actually sell time to candidates in accordance with the disclosure.
(d) Political file. Each DBS provider shall keep and permit public
inspection of a complete and orderly political file and shall prominently
disclose the physical location of the file, and the telephonic and
electronic means to access the file.
(1) The political file shall contain, at a minimum:
(i) A record of all requests for DBS origination time, the disposition of
those requests, and the charges made, if any, if the request is granted. The
“disposition” includes the schedule of time purchased, when spots actually
aired, the rates charged, and the classes of time purchased; and
(ii) A record of the free time provided if free time is provided for use by
or on behalf of candidates.
(2) DBS providers shall place all records required by this section in a file
available to the public as soon as possible and shall be retained for a
period of four years until December 31, 2006, and thereafter for a period of
two years.
(3) DBS providers shall make available, by fax, e-mail, or by mail upon
telephone request, photocopies of documents in their political files and
shall assist callers by answering questions about the contents of their
political files. Provided, however, that if a requester prefers access by
mail, the DBS provider shall pay for postage but may require individuals
requesting documents to pay for photocopying. To the extent that a DBS
provider places its political file on its Web site, it may refer the public
to the Web site in lieu of mailing photocopies. Any material required by
this section to be maintained in the political file must be made available
to the public by either mailing or Web site access or both.
(e) Commercial limits in children's programs. (1) No DBS provider shall air
more than 10.5 minutes of commercial matter per hour during children's
programming on weekends, or more that 12 minutes of commercial matter per
hour on week days.
(2) This rule shall not apply to programs aired on a broadcast television
channel which the DBS provider passively carries, or to channels over which
the DBS provider may not exercise editorial control, pursuant to 47 U.S.C.
335(b)(3).
(3) DBS providers airing children's programming must maintain records
sufficient to verify compliance with this rule and make such records
available to the public. Such records must be maintained for a period
sufficient to cover the limitations period specified in 47 U.S.C.
503(b)(6)(B).
Note 1 to paragraph (e): Commercial matter means airtime sold for purposes
of selling a product or service.
Note 2 to paragraph (e): For purposes of this section, children's
programming refers to programs originally produced and broadcast primarily
for an audience of children 12 years old and younger.
(f) Carriage obligation for noncommercial programming—
(1) Reservation requirement. DBS providers shall reserve four percent of
their channel capacity exclusively for use by qualified programmers for
noncommercial programming of an educational or informational nature. Channel
capacity shall be determined annually by calculating, based on measurements
taken on a quarterly basis, the average number of channels available for
video programming on all satellites licensed to the provider during the
previous year. DBS providers may use this reserved capacity for any purpose
until such time as it is used for noncommercial educational or informational
programming.
(2) Qualified programmer. For purposes of these rules, a qualified
programmer is:
(i) A noncommercial educational broadcast station as defined in section
397(6) of the Communications Act of 1934, as amended,
(ii) A public telecommunications entity as defined in section 397(12) of the
Communications Act of 1934, as amended,
(iii) An accredited nonprofit educational institution or a governmental
organization engaged in the formal education of enrolled students (A
publicly supported educational institution must be accredited by the
appropriate state department of education; a privately controlled
educational institution must be accredited by the appropriate state
department of education or the recognized regional and national accrediting
organizations), or
(iv) A nonprofit organization whose purposes are educational and include
providing educational and instructional television material to such
accredited institutions and governmental organizations.
(v) Other noncommercial entities with an educational mission.
(3) Editorial control. (i) A DBS operator will be required to make capacity
available only to qualified programmers and may select among such
programmers when demand exceeds the capacity of their reserved channels.
(ii) A DBS operator may not require the programmers it selects to include
particular programming on its channels.
(iii) A DBS operator may not alter or censor the content of the programming
provided by the qualified programmer using the channels reserved pursuant to
this section.
(4) Non-commercial channel limitation. A DBS operator cannot initially
select a qualified programmer to fill more than one of its reserved channels
except that, after all qualified entities that have sought access have been
offered access on at least one channel, a provider may allocate additional
channels to qualified programmers without having to make additional efforts
to secure other qualified programmers.
(5) Rates, terms and conditions. (i) In making the required reserved
capacity available, DBS providers cannot charge rates that exceed costs that
are directly related to making the capacity available to qualified
programmers. Direct costs include only the cost of transmitting the signal
to the uplink facility and uplinking the signal to the satellite.
(ii) Rates for capacity reserved under paragraph (a) of this section shall
not exceed 50 percent of the direct costs as defined in this section.
(iii) Nothing in this section shall be construed to prohibit DBS providers
from negotiating rates with qualified programmers that are less than 50
percent of direct costs or from paying qualified programmers for the use of
their programming.
(iv) DBS providers shall reserve discrete channels and offer these to
qualifying programmers at consistent times to fulfill the reservation
requirement described in these rules.
(6) Public file. (i) In addition to the political file requirements in
§ 25.701(d), each DBS provider shall keep and permit public inspection of a
complete and orderly record of:
(A) Quarterly measurements of channel capacity and yearly average
calculations on which it bases its four percent reservation, as well as its
response to any capacity changes;
(B) A record of entities to whom noncommercial capacity is being provided,
the amount of capacity being provided to each entity, the conditions under
which it is being provided and the rates, if any, being paid by the entity;
(C) A record of entities that have requested capacity, disposition of those
requests and reasons for the disposition.
(ii) All records required by this paragraph shall be placed in a file
available to the public as soon as possible and shall be retained for a
period of two years.
(7) Effective date. DBS providers are required to make channel capacity
available pursuant to this section upon the effective date. Programming
provided pursuant to this rule must be available to the public no later than
six months after the effective date.
[ 69 FR 23157 , Apr. 28, 2004, as amended at 72 FR 50033 , Aug. 29, 2007; 78 FR 8431 , Feb. 6, 2013]
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Goto Section: 25.601 | 25.701
Goto Year: 2014 |
2016
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