CHAPTER 5 —WIRE OR RADIO COMMUNICATION
SUBCHAPTER I—GENERAL PROVISIONS
SUBCHAPTER II—COMMON CARRIERS
Part I—Common Carrier Regulation
Part II—Development of Competitive Markets
Part III—Special Provisions Concerning Bell Operating Companies
SUBCHAPTER III—SPECIAL PROVISIONS RELATING TO RADIO
Part I—General Provisions
Part II—Radio Equipment and Radio Operators on Board Ship
Part III—Radio Installations on Vessels Carrying Passengers for Hire
Part IV—Assistance for Planning and Construction of Public Telecommunications Facilities; Telecommunications Demonstrations; Corporation for Public Broadcasting; General Provisions
subpart a—assistance for planning and construction of public telecommunications facilities
subpart b—national endowment for children's educational television
subpart c—telecommunications demonstrations
subpart d—corporation for public broadcasting
subpart e—general provisions
SUBCHAPTER IV—PROCEDURAL AND ADMINISTRATIVE PROVISIONS
SUBCHAPTER V—PENAL PROVISIONS; FORFEITURES
SUBCHAPTER V–A—CABLE COMMUNICATIONS
Part I—General Provisions
Part II—Use of Cable Channels and Cable Ownership Restrictions
Part III—Franchising and Regulation
Part IV—Miscellaneous Provisions
Part V—Video Programming Services Provided by Telephone Companies
SUBCHAPTER VI—MISCELLANEOUS PROVISIONS
Chapter Referred to in Other Sections
This chapter is referred to in
SUBCHAPTER I—GENERAL PROVISIONS
§151. Purposes of chapter; Federal Communications Commission created
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 discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, 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 created a commission to be known as the "Federal Communications Commission", which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.
(June 19, 1934, ch. 652, title I, §1,
References in Text
This chapter, referred to in text, was in the original "this Act", meaning act June 19, 1934, ch. 652,
Amendments
1996—
1937—Act May 20, 1937, inserted "for the purpose of promoting safety of life and property through the use of wire and radio communication".
Moratorium on Internet Taxes
"SEC. 1100. SHORT TITLE.
"This title may be cited as the 'Internet Tax Freedom Act'.
"SEC. 1101. MORATORIUM.
"(a)
"(1) taxes on Internet access, unless such tax was generally imposed and actually enforced prior to October 1, 1998; and
"(2) multiple or discriminatory taxes on electronic commerce.
"(b)
"(c)
"(d)
"(1) a provider of Internet access services had a reasonable opportunity to know by virtue of a rule or other public proclamation made by the appropriate administrative agency of the State or political subdivision thereof, that such agency has interpreted and applied such tax to Internet access services; or
"(2) a State or political subdivision thereof generally collected such tax on charges for Internet access.
"(e)
"(1)
"(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)
"(A) a telecommunications carrier engaged in the provision of a telecommunications service;
"(B) a person engaged in the business of providing an Internet access service;
"(C) a person engaged in the business of providing an Internet information location tool; or
"(D) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the communication.
"(3)
"(A)
"(B)
"(i)
"(ii)
"(C)
"(D)
"(E)
"(F)
"(i) the average person, applying contemporary community 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;
"(ii) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated 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
"(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
"(G)
"(H)
"(f)
"(1)
"(2)
"(A)
"(B)
"(C)
"(3)
"SEC. 1102. ADVISORY COMMISSION ON ELECTRONIC COMMERCE.
"(a)
"(1) be composed of 19 members appointed in accordance with subsection (b), including the chairperson who shall be selected by the members of the Commission from among themselves; and
"(2) conduct its business in accordance with the provisions of this title.
"(b)
"(1)
"(A) 3 representatives from the Federal Government, comprised of the Secretary of Commerce, the Secretary of the Treasury, and the United States Trade Representative (or their respective delegates).
"(B) 8 representatives from State and local governments (one such representative shall be from a State or local government that does not impose a sales tax and one representative shall be from a State that does not impose an income tax).
"(C) 8 representatives of the electronic commerce industry (including small business), telecommunications carriers, local retail businesses, and consumer groups, comprised of—
"(i) 5 individuals appointed by the Majority Leader of the Senate;
"(ii) 3 individuals appointed by the Minority Leader of the Senate;
"(iii) 5 individuals appointed by the Speaker of the House of Representatives; and
"(iv) 3 individuals appointed by the Minority Leader of the House of Representatives.
"(2)
"(3)
"(c)
"(d)
"(e)
"(f)
"(1)
"(2)
"(3)
"(4)
"(g)
"(1)
"(2)
"(A) an examination of—
"(i) barriers imposed in foreign markets on United States providers of property, goods, services, or information engaged in electronic commerce and on United States providers of telecommunications services; and
"(ii) how the imposition of such barriers will affect United States consumers, the competitiveness of United States citizens providing property, goods, services, or information in foreign markets, and the growth and maturing of the Internet;
"(B) an examination of the collection and administration of consumption taxes on electronic commerce in other countries and the United States, and the impact of such collection on the global economy, including an examination of the relationship between the collection and administration of such taxes when the transaction uses the Internet and when it does not;
"(C) an examination of the impact of the Internet and Internet access (particularly voice transmission) on the revenue base for taxes imposed under section 4251 of the Internal Revenue Code of 1986 [
"(D) an examination of model State legislation that—
"(i) would provide uniform definitions of categories of property, goods, service, or information subject to or exempt from sales and use taxes; and
"(ii) would ensure that Internet access services, online services, and communications and transactions using the Internet, Internet access service, or online services would be treated in a tax and technologically neutral manner relative to other forms of remote sales;
"(E) an examination of the effects of taxation, including the absence of taxation, on all interstate sales transactions, including transactions using the Internet, on retail businesses and on State and local governments, which examination may include a review of the efforts of State and local governments to collect sales and use taxes owed on in-State purchases from out-of-State sellers; and
"(F) the examination of ways to simplify Federal and State and local taxes imposed on the provision of telecommunications services.
"(3)
"(A) obligations under the Communications Act of 1934 (
"(B) the implementation of the Telecommunications Act of 1996 [
"(h)
"SEC. 1103. REPORT.
"Not later than 18 months after the date of the enactment of this Act [Oct. 21, 1998], the Commission shall transmit to Congress for its consideration a report reflecting the results, including such legislative recommendations as required to address the findings of the Commission's study under this title. Any recommendation agreed to by the Commission shall be tax and technologically neutral and apply to all forms of remote commerce. No finding or recommendation shall be included in the report unless agreed to by at least two-thirds of the members of the Commission serving at the time the finding or recommendation is made.
"SEC. 1104. DEFINITIONS.
"For the purposes of this title:
"(1)
"(2)
"(A) any tax imposed by a State or political subdivision thereof on electronic commerce that—
"(i) is not generally imposed and legally collectible by such State or such political subdivision on transactions involving similar property, goods, services, or information accomplished through other means;
"(ii) is not generally imposed and legally collectible at the same rate by such State or such political subdivision on transactions involving similar property, goods, services, or information accomplished through other means, unless the rate is lower as part of a phase-out of the tax over not more than a 5-year period;
"(iii) imposes an obligation to collect or pay the tax on a different person or entity than in the case of transactions involving similar property, goods, services, or information accomplished through other means;
"(iv) establishes a classification of Internet access service providers or online service providers for purposes of establishing a higher tax rate to be imposed on such providers than the tax rate generally applied to providers of similar information services delivered through other means; or
"(B) any tax imposed by a State or political subdivision thereof, if—
"(i) except with respect to a tax (on Internet access) that was generally imposed and actually enforced prior to October 1, 1998, the sole ability to access a site on a remote seller's out-of-State computer server is considered a factor in determining a remote seller's tax collection obligation; or
"(ii) a provider of Internet access service or online services is deemed to be the agent of a remote seller for determining tax collection obligations solely as a result of—
"(I) the display of a remote seller's information or content on the out-of-State computer server of a provider of Internet access service or online services; or
"(II) the processing of orders through the out-of-State computer server of a provider of Internet access service or online services.
"(3)
"(4)
"(5)
"(6)
"(A)
"(B)
"(C)
"(7)
"(8)
"(A)
"(i) any charge imposed by any governmental entity for the purpose of generating revenues for governmental purposes, and is not a fee imposed for a specific privilege, service, or benefit conferred; or
"(ii) the imposition on a seller of an obligation to collect and to remit to a governmental entity any sales or use tax imposed on a buyer by a governmental entity.
"(B)
"(9)
"(10)
Stylistic Consistency
Section 101(c) of title I of
"(1) the designation and heading of each title of the Act shall be in the form and typeface of the designation and heading of this title of this Act [
"(2) the designation and heading of each part of each title of the Act shall be in the form and typeface of the designation and heading of part I of title II of the Act [
Study of Telecommunications and Information Goals
"(a) The National Telecommunications and Information Administration shall conduct a comprehensive study of the long-range international telecommunications and information goals of the United States, the specific international telecommunications and information policies necessary to promote those goals and the strategies that will ensure that the United States achieves them. The Administration shall further conduct a review of the structures, procedures, and mechanisms which are utilized by the United States to develop international telecommunications and information policy.
"(b) In any study or review conducted pursuant to this section, the National Telecommunications and Information Administration shall not make public information regarding usage or traffic patterns which would damage United States commercial interests. Any such study or review shall be limited to international telecommunications policies or to domestic telecommunications issues which directly affect such policies."
Commission on Governmental Use of International Telecommunications
Act July 29, 1954, ch. 647,
Communication Privileges to Participants in World Telecommunication Conferences
Act May 13, 1947, ch. 51,
Executive Order No. 10460
Ex. Ord. No. 10460, eff. June 18, 1953, 18 F.R. 3513, as amended by Ex. Ord. No. 10773, eff. July 1, 1958, 23 F.R. 5061; Ex. Ord. No. 10782, eff. Sept. 8, 1958, 23 F.R. 6971, which related to the performance of telecommunication functions by Director of the Office of Civil and Defense Mobilization, was revoked by section 4 of Ex. Ord. No. 10995, eff. Feb. 16, 1962, 27 F.R. 1519.
Section Referred to in Other Sections
This section is referred to in
§152. Application of chapter
(a) The provisions of this chapter shall apply to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received 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 stations as hereinafter provided; but it shall not apply to persons engaged 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 chapter 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 operators which relate to such service, as provided in subchapter V–A.
(b) Except as provided in
(June 19, 1934, ch. 652, title I, §2,
References in Text
For definition of Canal Zone, referred to in subsec. (a), see
Codification
Words "the Philippine Islands or" were omitted from this section on authority of Proc. No. 2695, issued pursuant to
Amendments
1993—Subsec. (b).
1991—Subsec. (b).
1990—Subsec. (b).
1989—Subsec. (b).
1984—Subsec. (a).
Subsec. (b).
1978—Subsec. (b).
1954—Subsec. (b). Act Apr. 27, 1954, made it clear that intrastate communication service, whether by "wire or radio", would not be subject to the Commission's jurisdiction over charges, classifications, etc., and added cls. (3) and (4).
Effective Date of 1989 Amendment
Section 521(3) of
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1978 Amendment
Section 7 of
Applicability of Consent Decrees and Other Law
"(a)
"(1)
"(2)
"(3)
"(b)
"(1)
"(2)
"(3)
"(c)
"(1)
"(2)
"(d)
"(e)
"(1)
"(2)
"(3)
"(4)
Preemption of Local Taxation With Respect to Direct-to-Home Services
"(a)
"(b)
"(1)
"(2)
"(3)
"(4)
"(5)
"(c)
Section Referred to in Other Sections
This section is referred to in
§153. Definitions
For the purposes of this chapter, unless the context otherwise requires—
(1) 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 person. For purposes of this paragraph, the term "own" means to own an equity interest (or the equivalent thereof) of more than 10 percent.
(2) 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 pecuniary interest.
(3) AT&T Consent Decree
The term "AT&T Consent Decree" means the order entered August 24, 1982, in the antitrust action styled United States v. Western Electric, Civil Action 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.
(4) Bell operating company
The term "Bell operating company"—
(A) means any of the following companies: Bell Telephone Company of Nevada, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, New England Telephone and Telegraph Company, New Jersey Bell Telephone Company, New York Telephone Company, U S West Communications Company, South Central Bell Telephone Company, Southern Bell Telephone and Telegraph Company, Southwestern Bell Telephone Company, The Bell Telephone Company of Pennsylvania, The Chesapeake and Potomac Telephone Company, The Chesapeake and Potomac Telephone Company of Maryland, The Chesapeake and Potomac Telephone Company of Virginia, The Chesapeake 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 company 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).
(5) Broadcast station
The term "broadcast station", "broadcasting station", or "radio broadcast station" means a radio station equipment to engage in broadcasting as herein defined.
(6) 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.
(7) Cable service
The term "cable service" has the meaning given such term in
(8) Cable system
The term "cable system" has the meaning given such term in
(9) Chain broadcasting
The term "chain broadcasting" means simultaneous broadcasting of an identical program by two or more connected stations.
(10) 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 interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.
(11) Connecting carrier
The term "connecting carrier" means a carrier described in clauses (2), (3), or (4) of
(12) Construction permit
The term "construction permit" or "permit for construction" means that instrument of authorization required by this chapter or the rules and regulations of the Commission made pursuant to this chapter for the construction of a station, or the installation of apparatus, for the transmission of energy, or communications, or signals by radio, by whatever name the instrument may be designated by the Commission.
(13) Corporation
The term "corporation" includes any corporation, joint-stock company, or association.
(14) Customer premises equipment
The term "customer premises equipment" means equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications.
(15) 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 manner 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).
(16) 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.
(17) Foreign communication
The term "foreign communication" 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.
(18) 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 regulations referred to therein.
(19) 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 artificial.
(20) Information service
The term "information service" means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes 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 telecommunications service.
(21) InterLATA service
The term "interLATA service" means telecommunications between a point located in a local access and transport area and a point located outside such area.
(22) Interstate communication
The term "interstate communication" or "interstate transmission" means communication or transmission (A) from any State, Territory, or possession of the United States (other than the Canal Zone), or the District of Columbia, to any other State, Territory, or possession 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) between points within the United States but through a foreign country; but shall not, with respect to the provisions of subchapter II of this chapter (other than
(23) Land station
The term "land station" means a station, other than a mobile station, used for radio communication with mobile stations.
(24) Licensee
The term "licensee" means the holder of a radio station license granted or continued in force under authority of this chapter.
(25) Local access and transport area
The term "local access and transport area" or "LATA" means a contiguous geographic area—
(A) established before February 8, 1996, by a Bell operating company 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 company after February 8, 1996, and approved by the Commission.
(26) 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
(27) Mobile service
The term "mobile service" means a radio communication service carried on between mobile stations 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, 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 communications by eligible users over designated areas of operation, 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.
(28) Mobile station
The term "mobile station" means a radio-communication station capable of being moved and which ordinarily does move.
(29) Network element
The term "network element" means a facility or equipment used in the provision of a telecommunications 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 provision of a telecommunications service.
(30) Number portability
The term "number portability" means the ability of users of telecommunications services to retain, at the same location, existing telecommunications numbers without impairment of quality, reliability, or convenience when switching from one telecommunications carrier to another.
(31) Operator
(A) The term "operator" on a ship of the United States means, for the purpose of parts II and III of subchapter III of this chapter, 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 subchapter III of this chapter, a person holding a certificate as such of the proper class complying with the provisions of the radio regulations annexed to the International Telecommunication Convention in force, or complying with an agreement or treaty between the United States and the country in which the ship is registered.
(32) Person
The term "person" includes an individual, partnership, association, joint-stock company, trust, or corporation.
(33) Radio communication
The term "radio communication" or "communication by radio" means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.
(34) Radio officer
(A) The term "radio officer" on a ship of the United States means, for the purpose of part II of subchapter III of this chapter, 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
(B) "Radio officer" on a foreign ship means, for the purpose of part II of subchapter III of this chapter, 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.
(35) Radio station
The term "radio station" or "station" means a station equipped to engage in radio communication or radio transmission of energy.
(36) Radiotelegraph auto alarm
The term "radiotelegraph auto alarm" on a ship of the United States subject to the provisions of part II of subchapter III of this chapter means an automatic alarm receiving apparatus which responds to the radiotelegraph alarm signal and has been approved by the Commission. "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 government of the country in which the ship is registered: Provided, 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 chapter 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 subchapter III of this chapter, on a foreign ship subject to part II of subchapter III of this chapter, where the country in which the ship is registered and the United States are not parties to the same treaty, convention, or agreement prescribing the requirements for such apparatus.
(37) Rural telephone company
The term "rural telephone company" means a local exchange carrier operating entity to the extent that such entity—
(A) provides common carrier service to any local exchange 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 Bureau of the Census as of August 10, 1993;
(B) provides telephone exchange service, including exchange access, to fewer than 50,000 access lines;
(C) provides telephone exchange service to any local exchange carrier study area with fewer than 100,000 access lines; or
(D) has less than 15 percent of its access lines in communities of more than 50,000 on February 8, 1996.
(38) 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.
(39) Ship
(A) 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 transportation 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 passengers.
(C) A cargo ship means any ship not a passenger ship.
(D) A passenger is any person carried on board a ship or 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.
(40) State
The term "State" includes the District of Columbia and the Territories and possessions.
(41) 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.
(42) Station license
The term "station license", "radio station license", or "license" means that instrument of authorization required by this chapter or the rules and regulations of the Commission made pursuant to this chapter, for the use or operation of apparatus for transmission of energy, or communications, or signals by radio, by whatever name the instrument may be designated by the Commission.
(43) Telecommunications
The term "telecommunications" 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.
(44) Telecommunications carrier
The term "telecommunications carrier" means any provider of telecommunications services, except that such term does not include aggregators of telecommunications services (as defined in
(45) Telecommunications equipment
The term "telecommunications equipment" means equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades).
(46) Telecommunications service
The term "telecommunications service" means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
(47) Telephone exchange service
The term "telephone exchange service" means (A) service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange 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.
(48) 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.
(49) Television service
(A) Analog television service
The term "analog television service" means television service provided pursuant to the transmission standards prescribed by the Commission 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 pursuant to the transmission standards prescribed by the Commission in section 73.682(d) of its regulations (47 C.F.R. 73.682(d)).
(50) Transmission of energy by radio
The term "transmission of energy by radio" or "radio transmission of energy" includes both such transmission and all instrumentalities, facilities, and services incidental to such transmission.
(51) 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.
(52) Wire communication
The term "wire communication" 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 origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.
(June 19, 1934, ch. 652, title I, §3,
References in Text
For definition of Canal Zone, referred to in pars. (22) and (51), see
Part II of subchapter III of this chapter, referred to in pars. (31), (34), and (36), is classified to
Codification
In par. (34)(A), "
References to Philippine Islands in pars. (22) and (51) of this section omitted on authority of Proc. No. 2695, issued pursuant to
Amendments
1997—Pars. (49) to (52).
1996—
Subsecs. (e), (n).
Subsec. (r).
Subsec. (w).
Subsecs. (y), (z).
1993—Subsec. (n).
Subsec. (gg).
1982—Subsec. (n).
Subsec. (gg).
1968—Subsec. (e).
1965—Subsec. (w)(5).
Subsec. (x).
Subsec. (y).
Subsec. (z).
Subsec. (aa).
Subsecs. (bb) to (dd).
Subsec. (ee).
Subsecs. (ff), (gg).
1956—Subsec. (y)(2). Act Aug. 6, 1956, substituted "parts II and III of subchapter III of this chapter" for "part II of subchapter III of this chapter".
1954—Subsec. (e). Act Apr. 27, 1954, §2, obviated any possible construction that the Commission is empowered to assert common-carrier jurisdiction over point-to-point communication by radio between two points within a single State when the only possible claim that such an operation constitutes an interstate communication rests on the fact that the signal may traverse the territory of another State.
Subsec. (u). Act Apr. 27, 1954, §3, inserted reference to clauses (3) and (4) of
Subsecs. (ee), (ff). Act Aug. 13, 1954, ch. 729, added subsecs. (ee) and (ff).
Subsec. (gg), "Great Lakes Agreement". Act Aug. 13, 1954, ch. 735, added another subsec. (ee) which for purposes of codification was designated subsec. (gg).
1952—Subsecs. (bb) to (dd). Act July 16, 1952, added subsecs. (bb) to (dd).
1937—Subsecs. (w) to (aa). Act May 20, 1937, added subsecs. (w) to (aa).
Effective Date of 1956 Amendment
Amendment by act Aug. 6, 1956, effective Mar. 1, 1957, see section 4 of act Aug. 6, 1956, set out as an Effective Date note under
Effective Date of 1954 Amendment
Amendment by act Aug. 13, 1954, ch. 735, effective Nov. 13, 1954, see section 6 of act Aug. 13, 1954, set out as an Effective Date note under
Effective Date of 1952 Amendment
Section 19 of act July 16, 1952, provided that: "This Act [enacting
"(1) Insofar as the amendments made by this Act to the Communications Act of 1934 [this chapter] provide for procedural changes, requirements imposed by such changes shall not be mandatory as to any agency proceeding (as defined in the Administrative Procedure Act) [see
"(2) The amendments made by this Act to section 402 of the Communications Act of 1934 [
Common Terminology
Section 3001(a) of title III of
Section 3(b) of
Great Lakes Agreement
The Great Lakes Agreement, referred to in this section, relates to the bilateral Agreement for the Promotion of Safety on the Great Lakes by Means of Radio, signed at Ottawa, Canada, Feb. 21, 1952; entered into force Nov. 13, 1954, 3 UST 4926. A subsequent agreement for Promotion of Safety on the Great Lakes by Means of Radio, 1973, was signed at Ottawa, Canada, Feb. 26, 1973, and entered into force May 16, 1975, 25 UST 935.
Safety Convention
The United States was a party to the International Convention for the Safety of Life at Sea, signed at London May 31, 1929, entered into force as to the United States, Nov. 7, 1936,
Cross References
Charges or services, see
Contest for purposes of provisions relating to prohibited practices in contests of knowledge, skill, or chance, see
Employee as used in provisions relating to franks and passes, see
Line, see
Listening or viewing public for purposes of provisions relating to prohibited practices in contests of knowledge, skill, or chance, see
Overcharges as used in limitations of action provisions, see
Service or other valuable consideration as used in provisions relating to disclosure of payments to individuals connected with broadcasts, see
Section Referred to in Other Sections
This section is referred to in
§154. Federal Communications Commission
(a) Number of commissioners; appointment
The Federal Communications Commission (in this chapter referred to as the "Commission") shall be composed of five commissioners appointed by the President, by and with the advice and consent of the Senate, one of whom the President shall designate as chairman.
(b) Qualifications
(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 entity 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 securities 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 significantly regulated by the Commission under this chapter;
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 Commission.
(B)(i) The Commission shall have authority to waive, from time to time, the application of the prohibitions established in subparagraph (A) to persons employed by the Commission if the Commission 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
(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 furnish 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 position 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, manufacturing, or sales activities which are subject to regulation by the Commission, shall consider (without excluding other relevant factors)—
(A) the revenues, investments, profits, and managerial efforts directed to the related communications, manufacturing, or sales activities of the company or other entity involved, as compared 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 company or other entity may be affected by any action of the Commission; and
(D) the perceptions held by the public regarding the business 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 members 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) Terms of office; vacancies
commissioners 1 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 subsequent to the expiration of said fixed term of office; except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he succeeds. No vacancy in the Commission shall impair the right of the remaining commissioners to exercise all the powers of the Commission.
(d) Compensation of Commission members
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 receive an annual salary at the annual rate payable from time to time for level III of the Executive Schedule.
(e) Principal office; special sessions
The principal office of the Commission shall be in the District 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) Employees and assistants; compensation of members of Field Engineering and Monitoring Bureau; use of amateur volunteers for certain purposes; commercial radio operator examinations
(1) The Commission shall have authority, subject to the provisions of the civil-service laws and
(2) Without regard to the civil-service laws, but subject to
(3) The Commission shall fix a reasonable rate of extra compensation for overtime services of engineers in charge and radio engineers of the Field Engineering and Monitoring Bureau of the Federal Communications Commission, who may be required to remain on duty between the hours of 5 o'clock postmeridian and 8 o'clock antemeridian or on Sundays or holidays to perform services in connection with the inspection of ship radio equipment and apparatus for the purposes of part II of subchapter III of this chapter 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 exceed 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 annual appropriations which are authorized to be made from the general fund of the Treasury are insufficient, there are authorized to be appropriated from the general fund of the Treasury such additional amounts as may be necessary to the extent that the amounts of such receipts are in excess of the amounts appropriated: 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 inspections 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 entity designated by the Commission may make the inspections referred to in this paragraph.
(4)(A) The Commission, for purposes of preparing or administering 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 Commission 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 chapter (and of any regulation prescribed by the Commission under this chapter) relating to the amateur radio service, may—
(I) recruit and train any individual licensed by the Commission to operate an amateur station; and
(II) accept and employ the voluntary and uncompensated services of such individual.
(ii) The Commission, for purposes of recruiting and training individuals under clause (i) and for purposes of screening, annotating, and summarizing violation reports referred under clause (i), may accept and employ the voluntary and uncompensated services of any amateur station operator organization.
(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 information which is essential to the enforcement of this chapter (or regulations prescribed by the Commission under this chapter) 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 chapter (or regulations prescribed by the Commission under this chapter) relating to the amateur radio service.
Nothing in this clause shall be construed to grant individuals recruited 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 chapter (and of any regulation prescribed by the Commission under this chapter) 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 individuals under clause (i) and for purposes of screening, annotating, 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 subparagraph, shall seek to achieve a broad representation of individuals 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 transmissions;
(II) the conveyance to Commission personnel of information which is essential to the enforcement of this chapter (or regulations prescribed by the Commission under this chapter) relating to the citizens band radio service; and
(III) issuing advisory notices, under the general direction of the Commission, to persons who apparently have violated any provision of this chapter (or regulations prescribed by the Commission under this chapter) relating to the citizens band radio service.
Nothing in this clause shall be construed to grant individuals recruited 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.
(D) The Commission shall have the authority to endorse certification 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 committees 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 paragraph shall not be subject to or affected by the provisions of part III of title 5 or
(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 individuals 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 paragraph.
(I) With respect to the acceptance of voluntary uncompensated services for the preparation, processing, or administration of examinations for amateur station operator licenses pursuant to subparagraph (A) of this paragraph, individuals, or organizations which provide or coordinate such authorized volunteer services may recover from examinees reimbursement for out-of-pocket costs.
(5)(A) The Commission, for purposes of preparing and administering 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 employed may not receive compensation for such services, but may recover from examinees such fees as the Commission permits, considering such factors as public service and cost estimates submitted by such person.
(B) The Commission may prescribe regulations to select, oversee, sanction, and dismiss any person authorized under this paragraph 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) Expenditures
(1) The Commission may make such expenditures (including expenditures for rent and personal services at the seat of government and elsewhere, for office supplies, law books, 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 construction of such stations and facilities, and for the improvement, furnishing, 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 activities), 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
(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 reimbursement 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 committees of the Congress, and publish in the Federal Register, quarterly reports specifying reimbursements which the Commission has accepted 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 reimbursements 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 furtherance 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 uncompensated services, as authorized by
(B) The Commission, for purposes of providing radio club and military-recreational call signs, may utilize the voluntary, uncompensated, and unreimbursed services of amateur radio organizations authorized by the Commission that have tax-exempt status under
(C) For the purpose of Federal law on income taxes, estate taxes, and gift taxes, property or services accepted under the authority 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 provisions to preclude the acceptance of any gift, bequest, or donation that would create a conflict of interest or the appearance of a conflict of interest.
(h) Quorum; seal
Three members of the Commission shall constitute a quorum thereof. The Commission shall have an official seal which shall be judicially noticed.
(i) Duties and powers
The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.
(j) Conduct of proceedings; hearings
The Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. No commissioner shall participate in any hearing 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 of the Commission shall be entered of record, and its proceedings shall be public upon the request of any party interested. The Commission is authorized to withhold publication of records or proceedings containing secret information affecting the national defense.
(k) Annual reports to Congress
The Commission shall make an annual report to Congress, copies of which shall be distributed as are other reports transmitted 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 questions connected with the regulation of interstate and foreign wire and radio communication and radio transmission of energy;
(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 chapter or elsewhere under which such expenditures were made; and
(4) specific recommendations to Congress as to additional legislation which the Commission deems necessary or desirable, including all legislative proposals submitted for approval to the Director of the Office of Management and Budget.
(l) Record of reports
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 licensee that may have been complained of.
(m) Publication of reports; admissibility as evidence
The Commission shall provide for the publication of its reports and decisions in such form and manner as may be best adapted 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 authentication thereof.
(n) Compensation of appointees
Rates of compensation of persons appointed under this section shall be subject to the reduction applicable to officers and employees of the Federal Government generally.
(o) Use of communications in safety of life and property
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 cooperation and coordination of these systems.
(June 19, 1934, ch. 652, title I, §4,
References in Text
Level III and level IV of the Executive Schedule, referred to in subsec. (d), are set out in sections 5314 and 5315, respectively, of Title 5, Government Organization and Employees.
The civil-service laws, referred to in subsec. (f)(1), (2), are set forth in Title 5. See particularly,
Part II of subchapter III of this chapter, referred to in subsec. (f)(3), is classified to
Provisions of part III of title 5, referred to in subsec. (f)(4)(E), are classified to
Federal law on income taxes, estate taxes, and gift taxes, referred to in subsec. (g)(3)(C), is classified generally to Title 26, Internal Revenue Code.
Codification
In subsec. (f)(1), (2) "
In subsec. (f)(4)(E), "
Amendments
1996—Subsec. (f)(3).
Subsec. (f)(4)(A).
Subsec. (f)(4)(B).
Subsec. (f)(4)(C) to (G).
Subsec. (f)(4)(H).
Subsec. (f)(4)(I).
Subsec. (f)(4)(J).
1995—Subsec. (f)(4)(J).
1994—Subsec. (f)(3).
1992—Subsec. (g)(2)(D).
Subsec. (g)(3).
1990—Subsec. (f)(5).
Subsec. (g)(2)(D).
1988—Subsec. (g)(2)(D).
1986—Subsec. (c).
Subsec. (g)(2)(D).
Subsec. (g)(2)(E).
1983—Subsec. (f)(4)(E) to (I).
Subsec. (f)(4)(J).
1982—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (f)(2).
Subsec. (f)(4).
Subsec. (g).
Subsec. (h).
Subsec. (k)(2).
Subsec. (k)(3).
Subsec. (k)(4), (5).
1981—Subsec. (g).
1960—Subsec. (b).
Subsec. (c).
Subsec. (k)(3).
1954—Subsec. (f)(3). Act Aug. 13, 1954, substituted "engineers" for "inspectors" and "Field Engineering and Monitoring Bureau of the Federal Communications Commission" for "Field Division of the Engineering Department of the Federal Communications Commission" and extended provisions to include inspections required pursuant to the Great Lakes Agreement.
1952—Subsec. (b). Act July 16, 1952, §3(a), prohibited commissioners from engaging in any other work except that they may present or deliver papers for an honorarium, and prohibited any commissioner from appearing before the Commission in a professional capacity for 1 year after termination of his services except that this prohibition would not apply where commissioner has completed his full term.
Subsec. (f). Act July 16, 1952, §3(b), authorized Commission to appoint employees, allowed each commissioner to appoint a legal assistant, and a secretary, and allowed the Chairman to appoint an administrative assistant.
Subsec. (g). Act July 16, 1952, §3(c), authorized Commission to acquire land for monitoring stations and related facilities.
Subsec. (k). Act July 16, 1952, §3(d), required Commission to make more detailed reports to Congress.
1941—Subsec. (f). Act Mar. 23, 1941, designated existing provisions as par. (1) and added par. (2).
1937—Subsec. (k). Act May 20, 1937, inserted provisions that the Commission report to Congress annually at the beginning session of the Congress whether new wire or radio communication legislation is necessary and make specific recommendations thereof to Congress.
Subsec. (o). Act May 20, 1937, added subsec. (o).
1936—Subsec. (f). Act Jan. 22, 1936, inserted references to a chief accountant and three assistants.
Effective Date of 1986 Amendment
Section 1(b) of
"(1) upon the expiration of the term of office prescribed by law to occur on June 30, 1986, any person appointed as a member of the Federal Communications Commission to fill such office for the term following such date shall be eligible to serve until June 30, 1990, and any person appointed as a member of the Federal Communications Commission to the term of office prescribed by law to expire on June 30, 1987, shall be eligible to serve until June 30, 1989; and
"(2) notwithstanding the provisions of subsection (a) of this section [amending this section], persons appointed as members of the Federal Communications Commission to terms of office prescribed by law to expire on June 30, 1988, June 30, 1991, and June 30, 1992, shall be eligible to serve until the expiration of the term of office on June 30, 1988, June 30, 1991, and June 30, 1992, whichever is applicable."
Effective Date of 1982 Amendment
Section 501(b)(4) of
Effective Date of 1954 Amendment
Amendment by act Aug. 13, 1954, effective Nov. 13, 1954, see section 6 of act Aug. 13, 1954, set out as an Effective Date note under
Transfer of Functions
All offices of collector of customs, referred to in subsec. (f)(3), in Bureau of Customs of Department of the Treasury to which appointments were required to be made by President with advice and consent of Senate ordered abolished with such offices to be terminated not later than Dec. 31, 1966, by Reorg. Plan No. 1 of 1965, eff. May 25, 1965, 30 F.R. 7035,
Older Americans Program
Section 6 of
"(a) During fiscal years 1992 and 1993, the Federal Communications Commission is authorized to make grants to, or enter into cooperative agreements with, private nonprofit organizations designated by the Secretary of Labor under title V of the Older Americans Act of 1965 (
"(b) Prior to awarding any grant or entering into any agreement under subsection (a), the Office of the Managing Director of the Commission shall certify to the Commission that such grant or agreement will not—
"(1) result in the displacement of individuals currently employed by the Commission;
"(2) result in the employment of any individual when any other individual is on layoff status from the same or a substantially equivalent job within the jurisdiction of the Commission; or
"(3) affect existing contracts for services.
"(c) Participants in any program under a grant or cooperative agreement pursuant to this section shall—
"(1) execute a signed statement with the Commission in which such participants certify that they will adhere to the standards of conduct prescribed for regular employees of the Commission, as set forth in part 19 of title 47, Code of Federal Regulations; and
"(2) execute a confidential statement of employment and financial interest (Federal Communications Commission Form A–54) prior to commencement of work under the program.
Failure to comply with the terms of the signed statement described in paragraph (1) shall result in termination of the individual under the grant or agreement.
"(d) Nothing in this section shall be construed to permit employment of any such participant in any decisionmaking or policymaking position.
"(e) Grants or agreements under this section shall be subject to prior appropriation Acts."
Expiration of Commissioners' Terms
"(1) is prescribed by law;
"(2) is in effect before the date of the enactment of this Act [Sept. 8, 1982]; and
"(3) is to occur on June 30, 1983;
no person shall be appointed to fill such office after such date, and such office shall be abolished on July 1, 1983."
Federal Rules of Civil Procedure
Effect of Rule 44 on this section, see note by Advisory Committee under rule 44, Title 28, Appendix, Judiciary and Judicial Procedure.
Proof of official records, see rule 44.
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be capitalized.
§155. Commission
(a) Chairman; duties; vacancy
The member of the Commission designated by the President as chairman shall be the chief executive officer of the Commission. It shall be his duty to preside at all meetings and sessions of the Commission, to represent the Commission in all matters relating to legislation and legislative reports, except that any commissioner may present his own or minority views or supplemental reports, to represent the Commission in all matters requiring conferences or communications with other governmental officers, departments 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 members to act as chairman until the cause or circumstance requiring such designation shall have been eliminated or corrected.
(b) Organization of staff
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 operations, and (2) such other divisional organizations as the Commission 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 necessary to perform its functions.
(c) Delegation of functions; exceptions to initial orders; force, effect and enforcement of orders; administrative and judicial review; qualifications and compensation of delegates; assignment of cases; separation of review and investigative or prosecuting functions; secretary; seal
(1) When necessary to the proper functioning of the Commission and the prompt and orderly conduct of its business, the Commission may, by published rule or by order, delegate any of its functions (except functions granted to the Commission by this paragraph and by paragraphs (4), (5), and (6) of this subsection and except any action referred to in
(2) As used in this subsection the term "order, decision, report, or action" does not include an initial, tentative, or recommended decision to which exceptions may be filed as provided in
(3) Any order, decision, report, or action made or taken pursuant to any such delegation, unless reviewed as provided in paragraph (4) of this subsection, 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 Commission. 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) of this subsection.
(5) In passing upon applications for review, the Commission may grant, in whole or in part, or deny such applications without specifying any reasons therefor. No such application for review shall rely on questions of fact or law upon which the panel of commissioners, 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 action in accordance with
(7) The filing of an application for review under this subsection shall be a condition precedent to judicial review of any order, decision, report, or action made or taken pursuant to a delegation under paragraph (1) of this subsection. The time within which a petition for review must be filed in a proceeding to which
(8) The employees to whom the Commission may delegate review functions in any case of adjudication (as defined in
(9) The secretary and seal of the Commission shall be the secretary and seal of each panel of the Commission, each individual commissioner, and each employee board or individual employee exercising functions delegated pursuant to paragraph (1) of this subsection.
(d) Meetings
Meetings of the Commission shall be held at regular intervals, 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 hearing, and (2) within six months from the final date of the hearing in all hearing cases.
(e) Managing Director; appointment, functions, pay
The Commission shall have a Managing Director who shall be appointed by the Chairman subject to the approval of the Commission. The Managing Director, under the supervision and direction of the Chairman, shall perform such administrative and executive functions as the Chairman shall delegate. The Managing Director shall be paid at a rate equal to the rate then payable for level V of the Executive Schedule.
(June 19, 1934, ch. 652, title I, §5,
References in Text
Level V of the Executive Schedule, referred to in subsec. (e), is set out in
Codification
In subsec. (c)(1), (8), "adjudication (as defined in
Amendments
1996—Subsec. (c)(1).
1994—Subsecs. (e), (f).
1988—Subsec. (c)(1).
Subsec. (g).
1986—Subsec. (g).
1982—Subsec. (b).
Subsecs. (c) to (e).
1981—Subsecs. (f), (g).
1980—Subsec. (e).
1961—Subsec. (c).
Subsec. (d)(1).
Subsec. (d)(2).
Subsec. (d)(3).
Subsec. (d)(4).
Subsec. (d)(5).
Subsec. (d)(6).
Subsec. (d)(7), (8).
Subsec. (d)(9).
1952—Act July 16, 1952, amended section generally to provide for the organization of the staff, integrated bureaus, and for a review staff.
Section Referred to in Other Sections
This section is referred to in
§156. Authorization of appropriations
(a) There are authorized to be appropriated for the administration of this chapter 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.
(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 collected 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) of this section for fiscal year 1991, such sums as may be necessary not to exceed $2,000,000 shall be expended for upgrading and modernizing equipment at the Commission's electronic emissions test laboratory located in Laurel, Maryland.
(d) Of the sum appropriated in any fiscal year under this section, a portion, in an amount determined under
(June 19, 1934, ch. 652, title I, §6, as added
Amendments
1993—Subsec. (d).
1990—
1988—
1986—
1983—
Effective Date of 1988 Amendment
Section 2(b) of
Effective Date of 1986 Amendment
Section 5002(a)(2) of
Effective Date of 1983 Amendment
Section 2(b) of
Authorization of Appropriations
"(a)
"(b)
Section Referred to in Other Sections
This section is referred to in
§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 person or party (other than the Commission) who opposes a new technology or service proposed to be permitted under this chapter shall have the burden to demonstrate that such proposal is inconsistent with the public interest.
(b) The Commission shall determine whether any new technology or service proposed in a petition or application is in the public interest within one year after such petition or application is filed. If the Commission initiates its own proceeding for a new technology or service, such proceeding shall be completed within 12 months after it is initiated.
(June 19, 1934, ch. 652, title I, §7, as added
Amendments
1994—Subsec. (b).
Advanced Telecommunications Incentives
"(a)
"(b)
"(c)
"(1)
"(2)
Section Referred to in Other Sections
This section is referred to in
§158. Application fees
(a) Assessment and collection
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) Review and adjustment of Schedule by Commission; notification to Congress; judicial review
(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 individual fees shall not be adjusted until the increase or decrease, as determined by the net change in the Consumer Price Index since April 7, 1986, 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 transmit 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) Additional application fee; assessment as penalty; amount; dismissal of application or other filing
(1) The Commission shall prescribe by regulation an additional application fee which shall be assessed as a penalty for late payment of application fees required by subsection (a) of this section. Such penalty shall be 25 percent of the amount of the application 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) Inapplicability of application fees to certain radio services; waiver or deferment of payment
(1) The application fees established under this section shall not be applicable (A) to governmental entities and nonprofit entities licensed in the following radio services: Local Government, Police, Fire, Highway Maintenance, Forestry-Conservation, Public Safety, and Special Emergency Radio, or (B) to governmental entities licensed in other services.
(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) Deposit of moneys in general fund; reimbursement of United States for administration of chapter
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 chapter.
(f) Rules and regulations
The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section.
(g) Schedule of Application Fees
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
private radio services
1. Marine Coast Stations
2. Ship Stations
3. Operational Fixed Microwave Stations
4. Aviation (Ground Stations)
5. Aircraft Stations
6. Land Mobile Radio Stations (including Special Emergency and Public Safety Stations)
7. General Mobile Radio Service
equipment approval services/experimental radio
1. Certification
2. Type Acceptance
3. Type Approval (all devices)
7. Experimental Radio Service
mass media services
1. Commercial TV Stations
2. Commercial Radio Stations
3. FM Translators
4. TV Translators and LPTV Stations
5. Auxiliary Services (Includes Remote Pickup stations, TV Auxiliary Broadcast stations, Aural Broadcast STL and Intercity Relay stations, and Low Power Auxiliary stations)
6. FM⁄TV Boosters
7. International Broadcast Station
8. Cable Television Service
9. Direct Broadcast Satellite
common carrier services
1. All Common Carrier Services
2. Domestic Public Land Mobile Stations (includes Base, Dispatch, Control & Repeater Stations)
3. Cellular Systems (per system)
4. Rural Radio (includes Central Office, Interoffice, or Relay Facilities)
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)
6. Point-to-Point Microwave and Local Television Radio Service
7. Multipoint Distribution Service (including multichannel MDS)
8. Digital Electronic Message Service
9. International Fixed Public Radio (Public and Control Stations)
10. Fixed Satellite Transmit/Receive Earth Stations
11. Small Transmit/Receive Earth Stations (2 meters or less and operating in the 4/6 GHz frequency band)
12. Receive Only Earth Stations
13. Very Small Aperture Terminal (VSAT) Systems
14. Mobile Satellite Earth Stations
15. Radio determination Satellite Earth Stations
16. Space Stations
17. Section 214 Applications
20. Tariff Filings
21. Accounting and Audits
22. Low-Earth Orbit Satellite Systems
miscellaneous application fees
2. Radio Operator Examinations
3. Ship Inspections
(June 19, 1934, ch. 652, title I, §8, as added
References in Text
Parts II and III of title III of the Communications Act, referred to in subsec. (g), mean parts II and III of title III of the Communications Act of 1934 which are classified to parts II (§351 et seq.) and III (§381 et seq.), respectively, of subchapter III of this chapter.
Amendments
1994—Subsec. (d)(2).
Subsec. (g).
1993—
Subsecs. (a) to (e).
Subsec. (g).
1992—Subsec. (g).
1989—Subsec. (a).
Subsec. (b)(1).
Subsec. (d)(1).
Subsec. (g).
1988—Subsec. (b)(1).
Effective Date of 1989 Amendment
Section 3001(c) of
Schedule of Charges
Section 5002(f) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "an application fee".
§159. Regulatory fees
(a) General authority
(1) Recovery of costs
The Commission, in accordance with this section, shall assess and collect regulatory fees to recover the costs of the following regulatory activities of the Commission: enforcement activities, policy and rulemaking activities, user information services, and international activities.
(2) Fees contingent on appropriations
The fees described in paragraph (1) of this subsection shall be collected only if, and only in the total amounts, required in Appropriations Acts.
(b) Establishment and adjustment of regulatory fees
(1) In general
The fees assessed under subsection (a) of this section shall—
(A) be derived by determining the full-time equivalent number of employees performing the activities described in subsection (a) of this section within the Private Radio Bureau, Mass Media Bureau, Common Carrier Bureau, and other offices of the Commission, adjusted to take into account factors 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 determines are necessary in the public interest;
(B) be established at amounts that will result in collection, during each fiscal year, of an amount that can reasonably be expected to equal the amount appropriated for such fiscal year for the performance of the activities described in subsection (a) of this section; and
(C) until adjusted or amended by the Commission pursuant to paragraph (2) or (3), be the fees established by the Schedule of Regulatory Fees in subsection (g) of this section.
(2) Mandatory adjustment of schedule
For any fiscal year after fiscal year 1994, the Commission shall, by rule, revise the Schedule of Regulatory Fees by proportionate increases or decreases to reflect, in accordance with paragraph (1)(B), changes in the amount appropriated for the performance of the activities described in subsection (a) of this section 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 collection of an aggregate amount of fees pursuant to this section that can reasonably be expected to equal the aggregate 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 Commission 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 adjustments required by paragraph (2), the Commission shall, by regulation, amend the Schedule of Regulatory Fees if the Commission 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 reclassify services in the Schedule to reflect additions, deletions, or changes in the nature of its services as a consequence of Commission 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 adjustment 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.
(c) Enforcement
(1) Penalties for late payment
The Commission shall prescribe by regulation an additional charge which shall be assessed as a penalty for late payment of fees required by subsection (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 Commission may dismiss any application or other filing for failure to pay in a timely manner any fee or penalty under this section.
(3) Revocations
In addition to or in lieu of the penalties and dismissals authorized by paragraphs (1) and (2), the Commission 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 address. 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 deferred. 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 pursuant to this section, the hearing shall be based on written evidence 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 hearing. Any Commission order adopted pursuant to this subsection 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
(d) Waiver, reduction, and deferment
The Commission may waive, reduce, or defer payment of a fee in any specific instance for good cause shown, where such action would promote the public interest.
(e) Deposit of collections
Moneys received from fees established under this section shall be deposited as an offsetting collection 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 appropriate 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.
(g) Schedule
Until amended by the Commission pursuant to subsection (b) of this section, the Schedule of Regulatory Fees which the Federal Communications Commission shall, subject to subsection (a)(2) of this section, assess and collect shall be as follows:
Bureau/Category | Annual Regulatory 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 |
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 entities; 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 accounting systems necessary to making the adjustments authorized by subsection (b)(3) of this section. In the Commission's annual report, the Commission shall prepare an analysis of its progress in developing such systems and shall afford interested persons the opportunity to submit comments concerning the allocation of the costs of performing the functions described in subsection (a) of this section among the services in the Schedule.
(June 19, 1934, ch. 652, title I, §9, as added
Amendments
1994—Subsec. (f).
Subsec. (g).
1993—Subsec. (a).
Section Referred to in Other Sections
This section is referred to in
§160. Competition in provision of telecommunications service
(a) Regulatory flexibility
Notwithstanding
(1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory;
(2) enforcement of such regulation or provision is not necessary 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 determination under subsection (a)(3) of this section, 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 telecommunications services, that determination may be the basis for a Commission finding that forbearance is in the public interest.
(c) Petition for forbearance
Any telecommunications carrier, or class of telecommunications carriers, may submit a petition to the Commission requesting that the Commission exercise the authority 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 forbearance under subsection (a) of this section within one year after the Commission receives it, unless the one-year period is extended by the Commission. 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) of this section. The Commission may grant or deny a petition in whole or in part and shall explain its decision in writing.
(d) Limitation
Except as provided in
(e) State enforcement after Commission forbearance
A State commission may not continue to apply or enforce any provision of this chapter that the Commission has determined to forbear from applying under subsection (a) of this section.
(June 19, 1934, ch. 652, title I, §10, as added
§161. Regulatory reform
(a) Biennial review of regulations
In every even-numbered year (beginning with 1998), the Commission—
(1) shall review all regulations issued under this chapter in effect 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 meaningful 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.
(June 19, 1934, ch. 652, title I, §11, as added
SUBCHAPTER II—COMMON CARRIERS
Subchapter Referred to in Other Sections
This subchapter is referred to in
Part I—Common Carrier Regulation
§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 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 declared to be unlawful: Provided, That communications by wire or radio subject to this chapter 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 different charges may be made for the different classes of communications: Provided further, That nothing in this chapter or in any other provision of law shall be construed to prevent a common carrier subject to this chapter from entering into or operating under any contract with any common carrier not subject to this chapter, for the exchange of their services, if the Commission is of the opinion that such contract is not contrary to the public interest: Provided further, That nothing in this chapter or in any other provision of law shall prevent a common carrier subject to this chapter from furnishing reports of positions of ships at sea to newspapers of general circulation, either at a nominal charge or without charge, provided the name of such common carrier is displayed along with such ship position reports. The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.
(June 19, 1934, ch. 652, title II, §201,
References in Text
This chapter, referred to in subsec. (b), was in the original "this Act", meaning act June 19, 1934, ch. 652,
Amendments
1938—Subsec. (b). Act May 31, 1938, inserted proviso relating to reports of positions of ships at sea.
Telephone Rates for Members of Armed Forces Deployed Abroad
"(a)
"(b)
"(1) evaluating and analyzing the costs to Armed Forces personnel of such telephone calls to and from American military bases abroad;
"(2) evaluate methods of reducing the rates imposed on such calls;
"(3) determine the extent to which it is feasible for the Federal Communications Commission to encourage the carriers to adopt flexible billing procedures and policies for members of the Armed Forces and their families for telephone calls to and from the countries listed in subsection (a); and
"(4) advise executive branch agencies of methods for the United States to persuade foreign governments to reduce the surcharges that are often placed on such telephone calls."
Section Referred to in Other Sections
This section is referred to in
§202. Discriminations and preferences
(a) Charges, services, etc.
It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, 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 included
Charges or services, whenever referred to in this chapter, include 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 communication of any kind.
(c) Penalty
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.
(June 19, 1934, ch. 652, title II, §202,
Amendments
1989—Subsec. (c).
1960—Subsec. (b).
Section Referred to in Other Sections
This section is referred to in
§203. Schedules of charges
(a) Filing; public display
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 inspection schedules showing all charges for itself and its connecting carriers for interstate and foreign wire or radio communication between the different points on its own system, and between points on its own system and points on the system of its connecting carriers or points on the system of any other carrier subject to this chapter 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 Commission 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 connecting carriers shall keep such schedules open for inspection in such public places as the Commission may require.
(b) Changes in schedule; discretion of Commission to modify requirements
(1) No change shall be made in the charges, classifications, regulations, or practices which have been so filed and published except after one hundred and twenty days notice to the Commission and to the public, which shall be published in such form and contain such information as the Commission may by regulations prescribe.
(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 applicable to special circumstances or conditions except that the Commission may not require the notice period specified in paragraph (1) to be more than one hundred and twenty days.
(c) Overcharges and rebates
No carrier, unless otherwise provided by or under authority of this chapter, shall engage or participate in such communication unless schedules have been filed and published in accordance with the provisions of this chapter 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 privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such schedule.
(d) Rejection or refusal
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) Penalty for violations
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 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.
(June 19, 1934, ch. 652, title II, §203,
Amendments
1990—Subsec. (b).
1989—Subsec. (e).
1976—Subsec. (b).
Section Referred to in Other Sections
This section is referred to in
§204. Hearings on new charges; suspension pending hearing; refunds; duration of hearing; appeal of order concluding hearing
(a)(1) Whenever there is filed with the Commission any new or revised charge, classification, regulation, or practice, the Commission may either upon complaint or upon its own initiative without 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 suspension, may suspend the operation of such charge, classification, regulation, or practice, in whole or in part but not for a longer period 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 initiated 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 hearing 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 carrier, 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 November 3, 1988, issue an order concluding the hearing not later than 12 months after November 3, 1988.
(C) Any order concluding a hearing under this section shall be a final order and may be appealed under
(3) 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, regulation, 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 period, as is appropriate.
(b) Notwithstanding the provisions of subsection (a) of this section, the Commission may allow part of a charge, classification, regulation, or practice to go into effect, based upon a written showing by the carrier or carriers affected, and an opportunity for written comment thereon by affected persons, that such partial authorization is just, fair, and reasonable. Additionally, or in combination with a partial authorization, the Commission, upon a similar showing, 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 increased charges may include an accounting order of the type provided for in subsection (a) of this section.
(June 19, 1934, ch. 652, title II, §204,
Amendments
1996—Subsec. (a)(2)(A).
Subsec. (a)(3).
1992—Subsec. (a)(1).
1988—Subsec. (a).
1976—Subsec. (a).
Subsec. (b).
Effective Date of 1996 Amendment
Section 402(b)(4) of
Forbearance Authority Not Limited
Section 402(b)(3) of
Section Referred to in Other Sections
This section is referred to in
§205. Commission authorized to prescribe just and reasonable charges; penalties for violations
(a) Whenever, after full opportunity for hearing, upon a complaint or under an order for investigation and hearing made by the Commission on its own initiative, the Commission shall be of opinion 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 chapter, the Commission is authorized and empowered to determine 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, regulation, or practice is or will be just, fair, and reasonable, to be thereafter 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 carrier, or any receiver, trustee, lessee, or agent of either of them, who knowingly fails or neglects to obey any order made under the provisions of this section shall forfeit to the United States the sum of $12,000 for each offense. Every distinct violation shall be a separate offense, and in case of continuing violation each day shall be deemed a separate offense.
(June 19, 1934, ch. 652, title II, §205,
Amendments
1989—Subsec. (b).
Section Referred to in Other Sections
This section is referred to in
§206. Carriers' liability for damages
In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter 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 chapter, 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.
(June 19, 1934, ch. 652, title II, §206,
Federal Rules of Civil Procedure
Judgment and costs, see rule 54, Title 28, Appendix, Judiciary and Judicial Procedure.
Section Referred to in Other Sections
This section is referred to in
§207. Recovery of damages
Any person claiming to be damaged by any common carrier subject to the provisions of this chapter 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 chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.
(June 19, 1934, ch. 652, title II, §207,
Section Referred to in Other Sections
This section is referred to in
§208. Complaints to Commission; investigations; duration of investigation; appeal of order concluding investigation
(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 chapter, 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 complained 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 manner 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 complaint.
(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 investigation initiated prior to November 3, 1988, issue an order concluding the investigation not later than 12 months after November 3, 1988.
(3) Any order concluding an investigation under paragraph (1) or (2) shall be a final order and may be appealed under
(June 19, 1934, ch. 652, title II, §208,
Amendments
1996—Subsec. (b)(1).
1988—
Effective Date of 1996 Amendment
Amendment by
Forbearance Authority Not Limited
Nothing in amendment by
Section Referred to in Other Sections
This section is referred to in
§209. Orders for payment of money
If, after hearing on a complaint, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this chapter, 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.
(June 19, 1934, ch. 652, title II, §209,
§210. Franks and passes; free service to governmental agencies in connection with national defense
(a) Nothing in this chapter or in any other provision of law shall be construed to prohibit common carriers from issuing or giving franks to, or 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 exchanging franks and passes to or with other common carriers not subject to the provisions of this chapter, for the use of their officers, agents, employees, and their families. The term "employees", as used in this section, shall include furloughed, pensioned, and superannuated employees.
(b) Nothing in this chapter or in any other provision of law shall be construed to prohibit common carriers from rendering to any agency of the Government free service in connection with the preparation for the national defense: Provided, That such free service may be rendered only in accordance with such rules and regulations as the Commission may prescribe therefor.
(June 19, 1934, ch. 652, title II, §210,
Amendments
1940—Act June 25, 1940, designated existing provisions as subsec. (a) and added subsec. (b).
§211. Contracts of carriers; filing with Commission
(a) Every carrier subject to this chapter shall file with the Commission copies of all contracts, agreements, or arrangements with other carriers, or with common carriers not subject to the provisions of this chapter, in relation to any traffic affected by the provisions of this chapter 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 contracts as the Commission may determine.
(June 19, 1934, ch. 652, title II, §211,
§212. Interlocking directorates; officials dealing in securities
It shall be unlawful for any person to hold the position of officer or director of more than one carrier subject to this chapter, unless such holding shall have been authorized by order of the Commission, upon due showing in form and manner prescribed by the Commission, that neither public nor private interests will be adversely affected thereby: Provided, That the Commission may authorize 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 directly 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 chapter 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 carrier, or to share in any of the proceeds thereof, or to participate in the making or paying of any dividends of such carriers from any funds properly included in capital account.
(June 19, 1934, ch. 652, title II, §212,
Amendments
1994—
1956—Act Aug. 2, 1956, inserted proviso that Commission may authorize persons to hold position of officer or director in more than one carrier, where carrier owns more than 50 percent of the stock of the other carriers, or that 50 percent or more of the stock of all such carriers is owned by the same person, struck out "such" before "carrier" in sentence after proviso, inserted "subject to this chapter" after that word, and substituted "carriers" for "carrier" toward end of said sentence.
§213. Valuation of property of carrier
(a) Hearing
The Commission may from time to time, as may be necessary for the proper administration of this chapter, and after opportunity for hearing, make a valuation of all or of any part of the property owned or used by any carrier subject to this chapter, as of such date as the Commission may fix.
(b) Inventory
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 reproduction cost new less depreciation, as of such date as the Commission may direct; and such carrier shall file such inventory within such reasonable time as the Commission by order shall require.
(c) Original cost
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 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 estimated in such manner as the Commission may prescribe. If the carrier owning the property at the time such original cost is reported shall have paid more or less than the original cost to acquire 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 carrier under this subsection shall show the source or sources from which the original cost reported was obtained, and such other information as to the manner in which the report was prepared, as the Commission shall require.
(d) Easement, license or franchise
Nothing shall be included in the original cost reported for the property of any carrier under subsection (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, beyond the reasonable necessary expense lawfully incurred in obtaining 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 incurred as aforesaid.
(e) Improvements; changes in condition
The Commission shall keep itself informed of all new construction, 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) Additional information; access to records and data
For the purpose of enabling the Commission to make a valuation of any of the property of any such carrier, or to find the original 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 Commission 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 or 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 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) State commissions
Nothing in this section shall impair or diminish the powers of any State commission.
(June 19, 1934, ch. 652, title II, §213,
Amendments
1994—Subsecs. (g), (h).
§214. Extension of lines or discontinuance of service; certificate of public convenience and necessity
(a) Exceptions; temporary or emergency service or discontinuance of service; changes in plant, operation or equipment
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 construction, 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
(b) Notification of Secretary of Defense, Secretary of State, and State Governor
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, acquired, 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 notice as it shall determine.
(c) Approval or disapproval; injunction
The Commission shall have power to issue such certificate as applied for, or to refuse to issue it, or to issue it for a portion or portions of a line, or extension thereof, or discontinuance, reduction, 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, acquisition, operation, or discontinuance, reduction, or impairment of service covered thereby. Any construction, extension, acquisition, operation, discontinuance, reduction, or impairment of service contrary to the provisions of this section may be enjoined by any court of competent jurisdiction at the suit of the United States, the Commission, the State commission, any State affected, or any party in interest.
(d) Order of Commission; hearing; penalty
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 expeditious 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 Commission made in pursuance of this subsection shall forfeit to the United States $1,200 for each day during which such refusal or neglect 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 universal service support in accordance with
(A) offer the services that are supported by Federal universal service support mechanisms under
(B) advertise the availability of such services and the charges therefor using media of general distribution.
(2) Designation of eligible telecommunications carriers
A State commission shall upon its own motion or upon request designate a common carrier that meets the requirements of paragraph (1) as an eligible telecommunications carrier for a service area designated by the State commission. Upon request and consistent with the public interest, convenience, and necessity, the State commission may, in the case of 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 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 public interest.
(3) Designation of eligible telecommunications carriers for unserved areas
If no common carrier will provide the services that are supported by Federal universal service support mechanisms under
(4) Relinquishment of universal service
A State commission (or the Commission in the case of a common carrier designated under paragraph (6)) shall permit an eligible telecommunications carrier to relinquish its designation as such a carrier in any area served by more than one eligible telecommunications carrier. An eligible telecommunications carrier that seeks to relinquish its eligible telecommunications carrier designation for an area served by more than one eligible telecommunications carrier shall give advance notice to the State commission (or the Commission in the case of a common carrier designated under paragraph (6)) of such relinquishment. Prior to permitting a telecommunications carrier designated as an eligible telecommunications carrier to cease providing universal service in an area served by more than one eligible telecommunications carrier, the State commission (or the Commission in the case of a common carrier designated under paragraph (6)) shall require the remaining eligible telecommunications 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 construction of adequate facilities by any remaining eligible telecommunications carrier. The State commission (or the Commission in the case of a common carrier designated under paragraph (6)) shall establish a time, not to exceed one year after the State commission (or the Commission in the case of a common carrier designated under paragraph (6)) approves such relinquishment under this paragraph, within which such purchase or construction shall be completed.
(5) "Service area" defined
The term "service area" means a geographic area established by a State commission (or the Commission under paragraph (6)) for the purpose of determining 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
(6) Common carriers not subject to State commission jurisdiction
In the case of a common carrier providing telephone 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 telecommunications 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 necessity, 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.
(June 19, 1934, ch. 652, title II, §214,
Amendments
1997—Subsec. (e)(1).
Subsec. (e)(3).
Subsec. (e)(4).
Subsec. (e)(5).
Subsec. (e)(6).
1996—Subsec. (e).
1994—Subsec. (a).
1989—Subsec. (d).
1974—Subsec. (b).
1943—Subsec. (a). Act Mar. 6, 1943, §2, among other changes inserted all after "no carrier shall discontinue", etc.
Subsec. (b). Act Mar. 6, 1943, §3, among other changes provided notice should be filed with Secretary of War and the Secretary of the Navy.
Subsec. (c). Act Mar. 6, 1943, §4, extended provisions to include discontinuance, reduction, or impairment of service.
Subsec. (d). Act Mar. 6, 1943, §5, amended first sentence.
Extension of Lines; ARMIS Reports
Section 402(b)(2) of
"(A) to be exempt from the requirements of section 214 of the Communications Act of 1934 [
"(B) to file cost allocation manuals and ARMIS reports annually, to the extent such carrier is required to file such manuals or reports."
Section Referred to in Other Sections
This section is referred to in
§215. Examination of transactions relating to furnishing of services, equipment, etc.; reports to Congress
(a) Access to records and documents
The Commission shall examine into transactions entered into by any common carrier which relate to the furnishing of equipment, supplies, research, services, finances, credit, or personnel to such carrier and/or which may affect the charges made or to be made and/or the services rendered or to be rendered by such carrier, in wire or radio communication subject to this chapter, 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 unreasonable increase in charges or in the maintenance of undue or unreasonable charges for such service; and in order to fully examine 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 correspondence now or hereafter existing, of persons furnishing such equipment, 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 transactions void or to permit such transactions to be carried out subject to such modification of their terms and conditions as the Commission shall deem desirable in the public interest; and/or (2) subjecting such transactions to the approval of the Commission where the person furnishing or seeking to furnish the equipment, supplies, research, services, finances, credit, or personnel is a person directly 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) Wire telephone and telegraph services
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, together with its recommendations as to whether additional legislation on this subject is desirable.
(c) Exclusive dealing contracts
The Commission shall examine all contracts of common carriers subject to this chapter which prevent the other party thereto from dealing with another common carrier subject to this chapter, and shall report its findings to Congress, together with its recommendations as to whether additional legislation on this subject is desirable.
(June 19, 1934, ch. 652, title II, §215,
§216. Receivers and trustees; application of chapter
The provisions of this chapter shall apply to all receivers and operating trustees of carriers subject to this chapter to the same extent that it applies to carriers.
(June 19, 1934, ch. 652, title II, §216,
§217. Agents' acts and omissions; liability of carrier
In construing and enforcing the provisions of this chapter, 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.
(June 19, 1934, ch. 652, title II, §217,
§218. Management of business; inquiries by Commission
The Commission may inquire into the management of the business of all carriers subject to this chapter, and shall keep itself informed as to the manner and method in which the same is conducted 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 indirectly controlling or controlled by, or under direct or indirect common control with, such carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created.
(June 19, 1934, ch. 652, title II, §218,
§219. Reports by carriers; contents and requirements generally
(a) The Commission is authorized to require annual reports from all carriers subject to this chapter, 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 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 floating debts and the interest paid thereon; the cost and value of the carrier's property, franchises, and equipment; the number of employees and the salaries paid each class; the names of all officers and directors, and the amount of salary, bonus, and all other compensation 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 regulations concerning charges, or agreements, arrangements, or contracts 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 annual reports within the time above specified, or within the time extended by the Commission, for making and filing the same, or shall fail to make specific answer to any question authorized by the provisions of this section within thirty days from the time it is lawfully 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 general or special orders require any such carriers to file monthly reports of earnings and expenses and to file periodical and/or special reports concerning any matters with respect to which the Commission 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 forfeitures above provided.
(June 19, 1934, ch. 652, title II, §219,
Amendments
1989—Subsec. (b).
1962—Subsec. (a).
Subsec. (b).
1956—Subsec. (a). Act Aug. 2, 1956, substituted "Except as otherwise required by the Commission, such" for "Such" at beginning of second sentence.
§220. Accounts, records, and memoranda
(a) Forms
(1) The Commission may, in its discretion, prescribe the forms of any and all accounts, records, and memoranda to be kept by carriers subject to this chapter, 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 accounts 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, manufactured, or offered by such common carrier.
(b) Depreciation charges
The Commission may prescribe, for such carriers as it determines to be appropriate, the classes of property for which depreciation charges may be properly included under operating expenses, and the percentages of depreciation which shall be charged with respect 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 prescribed. Such carriers shall not, after the Commission has prescribed 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 Commission, or after the Commission has prescribed percentages of depreciation, charge with respect to any class of property a percentage of depreciation other than that prescribed therefor by the Commission. 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 otherwise under its operating or other expenses.
(c) Access to information; burden of proof; use of independent auditors
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 preservation and destruction of books, papers, and documents shall apply thereto. The burden of proof to justify every accounting entry questioned by the Commission shall be on the person making, authorizing, 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 messages or communications shall not be deemed to prohibit the disclosure 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 assist 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 Commission under this subsection and shall be subject to subsection (f) of this section in the same manner as if that person were an employee of the Commission.
(d) Penalty for failure to comply
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 accounts, records, memoranda, documents, papers, and correspondence 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 offense.
(e) False entry; destruction; penalty
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 memoranda 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 discretion 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) Confidentiality of information
No member, officer, or employee of the Commission shall divulge 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) Use of other forms; alterations in prescribed forms
After the Commission has prescribed the forms and manner of keeping of accounts, records, and 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 prescribed 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) Exemption; regulation by State commission
The Commission may classify carriers subject to this chapter and prescribe different requirements under this section for different classes of carriers, and may, if it deems such action consistent with the public interest, except the carriers of any particular 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) Consultation with State commissions
The Commission, before prescribing any requirements as to accounts, records, or memoranda, shall notify each State commission having jurisdiction with respect to any carrier involved, and shall give reasonable opportunity to each such commission to present its views, and shall receive and consider such views and recommendations.
(j) Report to Congress on need for further legislation
The Commission shall investigate and report to Congress as to the need for legislation to define further or harmonize the powers of the Commission and of State commissions with respect to matters to which this section relates.
(June 19, 1934, ch. 652, title II, §220,
Amendments
1996—Subsec. (b).
Subsec. (c).
1994—Subsec. (a).
Subsec. (b).
1989—Subsec. (d).
§221. Consolidations and mergers of telephone companies
(a) Repealed. Pub. L. 104–104, title VI, §601(b)(2), Feb. 8, 1996, 110 Stat. 143
(b) State jurisdiction over services
Subject to the provisions of
(c) Determination of property used in interstate toll service
For the purpose of administering this chapter as to carriers engaged in wire telephone communication, the Commission may classify the property of any such carrier used for wire telephone communication, 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 carrier is located, and such other persons as the Commission may prescribe.
(d) Valuation of property
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 foreign telephone toll service.
(June 19, 1934, ch. 652, title II, §221,
Amendments
1996—Subsec. (a).
1990—Subsec. (b).
1956—Subsec. (a). Act Aug. 2, 1956, inserted provisions relating to submission of comments by parties and required a public hearing upon request, in lieu of former provisions requiring hearing upon application.
1954—Subsec. (b). Act Apr. 27, 1954, included mobile or point-to-point radio telephone exchange service within exclusions provided for in such subsection, where it is subject to regulation by a State commission or by local governmental authority, and made it clear that the Commission retains its licensing authority over the radio stations that might be involved in such service.
Section Referred to in Other Sections
This section is referred to in
§222. Privacy of customer information
(a) In general
Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier.
(b) Confidentiality of carrier information
A telecommunications carrier that receives or obtains proprietary information from another carrier for purposes of providing any telecommunications service shall use such information only for such purpose, and shall not use such information for its own marketing efforts.
(c) Confidentiality of customer proprietary network information
(1) Privacy requirements for telecommunications carriers
Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, 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 telecommunications 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 telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications 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 persons on reasonable and nondiscriminatory terms and conditions upon reasonable request therefor.
(d) Exceptions
Nothing in this section prohibits a telecommunications carrier from using, disclosing, or permitting access to customer proprietary network information obtained from its customers, either directly or indirectly through its agents—
(1) to initiate, render, bill, and collect for telecommunications services;
(2) to protect the rights or property of the carrier, or to protect users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services;
(3) to provide any inbound telemarketing, referral, or administrative services to the customer for the duration of the call, if such call was initiated by the customer and the customer 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
(A) to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety, fire service, or law enforcement official, or hospital emergency or trauma care facility, in order to respond 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 serious physical harm; or
(C) to providers of information or database management services solely for purposes of assisting in the delivery of emergency services in response to an emergency.
(e) Subscriber list information
Notwithstanding subsections (b), (c), and (d) of this section, a telecommunications carrier that provides telephone exchange service shall provide subscriber list information 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 wireless location information
For purposes of subsection (c)(1) of this section, 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 commercial mobile service (as such term is defined in
(2) automatic crash notification information to any person other than for use in the operation of an automatic crash notification system.
(g) Subscriber listed and unlisted information for emergency services
Notwithstanding subsections (b), (c), and (d) of this section, a telecommunications carrier that provides telephone exchange service shall provide information described in subsection (i)(3)(A) 1 of this section (including information pertaining to subscribers whose information is unlisted or unpublished) that is in its possession or control (including information pertaining to subscribers 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 support 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 virtue of the carrier-customer relationship; and
(B) information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier;
except that such term does not include subscriber list information.
(2) Aggregate information
The term "aggregate customer information" means collective data that relates to a group or category of services or customers, from which individual customer identities and characteristics have been removed.
(3) Subscriber list information
The term "subscriber list information" means any information—
(A) identifying the listed names of subscribers of a carrier and such subscribers' telephone numbers, addresses, or primary advertising classifications (as such classifications are assigned at the time of the establishment of such service), or any combination of such listed names, numbers, 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 designated to receive emergency calls and route them to emergency 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 "emergency notification services" means services that notify the public 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.
(June 19, 1934, ch. 652, title II, §222, as added
Prior Provisions
A prior section 222, act June 19, 1934, ch. 652, title II, §222, as added Mar. 6, 1943, ch. 10, §1,
Amendments
1999—Subsec. (d)(4).
Subsecs. (f), (g).
Subsec. (h).
1 So in original. Probably should be subsection "(h)(3)(A)".
§223. Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications
(a) Prohibited acts generally
Whoever—
(1) in interstate or foreign communications—
(A) by means of a telecommunications device knowingly—
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;
(B) by means of a telecommunications device knowingly—
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, 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 communication;
(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
(D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; 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 or imprisoned not more than two years, or both.
(b) Prohibited acts for commercial purposes; defense to prosecution
(1) Whoever knowingly—
(A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication 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 control to be used for an activity prohibited by subparagraph (A),
shall be fined in accordance with title 18 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 communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person's consent, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person's control 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 violation. 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 violation 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 designated by the Commission for such purposes, or
(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) Restriction on access to subscribers by common carriers; judicial remedies respecting restrictions
(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 communication specified in subsection (b) of this section 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 subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, 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 representation by a provider of communications that communications provided by that provider are communications specified in subsection (b) of this section, 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 restrict access to communications described in subsection (b) of this section.
(3) Notwithstanding paragraph (2) of this subsection, a provider 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 communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access.
(d) Sending or displaying offensive material to persons under 18
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, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,
shall be fined under title 18 or imprisoned not more than two years, or both.
(e) Defenses
In addition to any other defenses available by law:
(1) No person shall be held to have violated subsection (a) or (d) of this section solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access 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 subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.
(3) The defenses provided in paragraph (1) of this subsection 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 person.
(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 conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(1)(B) of this section 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, including any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.
(6) The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d) of this section. Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, 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) of this section. Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.
(f) Violations of law required; commercial entities, nonprofit libraries, or institutions of higher education
(1) No cause of action may be brought in any court or administrative agency against 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 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 libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) of this section that is inconsistent 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 complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section.
(g) Application and enforcement of other Federal law
Nothing in subsection (a), (d), (e), or (f) of this section or in the defenses to prosecution under subsection (a) or (d) of this section shall be construed to affect or limit the application or enforcement of any other Federal law.
(h) Definitions
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 chapter; and
(B) does not include an interactive computer service.
(2) The term "interactive computer service" has the meaning provided in
(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
(5) The term "library" means a library eligible for participation in State-based plans for funds under title III of the Library Services and Construction Act (
(June 19, 1934, ch. 652, title II, §223, as added
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (b)(6), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Library Services and Construction Act, referred to in subsec. (h)(5), is act June 19, 1956, ch. 407,
Amendments
1998—Subsec. (h)(2).
Subsec. (h)(4).
1996—Subsec. (a).
"(1) in the District of Columbia or in interstate or foreign communication by means of telephone—
"(A) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent;
"(B) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number;
"(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
"(D) makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or
"(2) knowingly permits any telephone facility under his control to be used for any purpose prohibited by this section,
shall be fined not more than $50,000 or imprisoned not more than six months, or both."
Subsecs. (d) to (h).
1994—Subsec. (b)(3).
1989—Subsecs. (b), (c).
"(1) Whoever knowingly—
"(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene communication 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 control to be used for an activity prohibited by clause (i);
shall be fined in accordance with title 18 or imprisoned not more than two years, or both.
"(2) Whoever knowingly—
"(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any indecent communication 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 control to be used for an activity prohibited by clause (i),
shall be fined not more than $50,000 or imprisoned not more than six months, or both."
1988—Subsec. (b).
"(1) Whoever knowingly—
"(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene or indecent communication 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 control 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.
"(2) In addition to the penalties under paragraph (1), whoever, in the District of Columbia or in interstate or foreign communication, intentionally violates paragraph (1)(A) or (1)(B) shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
"(3)(A) In addition to the penalties under paragraphs (1) and (2), whoever, in the District of Columbia or in interstate or foreign communication, violates paragraph (1)(A) or (1)(B) shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
"(B) A fine under this paragraph may be assessed either—
"(i) by a court, pursuant to a civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or
"(ii) by the Commission after appropriate administrative proceedings.
"(4) 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)(A) or (1)(B). An injunction may be granted in accordance with the Federal Rules of Civil Procedure."
1983—Subsec. (a).
Subsec. (a)(2).
Subsec. (b).
Effective Date of 1998 Amendments
Amendment by
Effective Date of 1989 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Expedited Review
Section 561 of title V of
"(a)
"(b)
Regulations; Disposition of Complaints Pending on December 8, 1983
Section 8(c), (d) of
"(c) The Federal Communications Commission shall issue regulations pursuant to section 223(b)(2) of the Communications Act of 1934 (as added by subsection (a) of this section) [subsec. (b)(2) of this section] not later than one hundred and eighty days after the date of the enactment of this Act [Dec. 8, 1983].
"(d) The Commission shall act on all complaints alleging violation of section 223 of the Communications Act of 1934 [this section] which are pending on the date of the enactment of this Act [Dec. 8, 1983] within ninety days of such date of enactment."
Section Referred to in Other Sections
This section is referred to in
§224. Pole attachments
(a) Definitions
As used in this section:
(1) The term "utility" means any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, 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 subdivision, 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 utility.
(5) For purposes of this section, the term "telecommunications carrier" (as defined in
(b) Authority of Commission to regulate rates, terms, and conditions; enforcement powers; promulgation of regulations
(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 determinations 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 orders, as authorized by
(2) The Commission shall prescribe by rule regulations to carry out the provisions of this section.
(c) State regulatory authority over rates, terms, and conditions; preemption; certification; circumstances constituting State regulation
(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) of this section, 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 interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services.
(3) For purposes of this subsection, a State shall not be considered to regulate the rates, terms, and conditions for pole attachments—
(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) Determination of just and reasonable rates; "usable space" defined
(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 capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable 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 attachment used by a cable television system solely to provide cable service. Until the effective date of the regulations required under subsection (e) of this section, this subsection shall also apply to the rate for any pole attachment used by a cable system or any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) to provide any telecommunications service.
(e) Regulations governing charges; apportionment of costs of providing space
(1) The Commission shall, no later than 2 years after February 8, 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 resolve 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 February 8, 1996. Any increase in the rates for pole attachments that result from the adoption of the regulations required by this subsection shall be phased in equal annual increments over a period of 5 years beginning on the effective date of such regulations.
(f) Nondiscriminatory access
(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 telecommunications 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 engineering purposes.
(g) Imputation to costs of pole attachment rate
A utility that engages in the provision of telecommunications services or cable services shall impute to its costs of providing such services (and charge any affiliate, subsidiary, or associate 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) Modification or alteration of pole, duct, conduit, or right-of-way
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) Costs of rearranging or replacing attachment
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 rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an additional attachment or the modification of an existing attachment sought by any other entity (including the owner of such pole, duct, conduit, or right-of-way).
(June 19, 1934, ch. 652, title II, §224, as added
Amendments
1996—Subsec. (a)(1).
Subsec. (a)(4).
Subsec. (a)(5).
Subsec. (c)(1).
Subsec. (c)(2)(B).
Subsec. (d)(3).
Subsecs. (e) to (i).
1994—Subsec. (b)(2).
1984—Subsec. (c)(3).
1982—Subsec. (e).
Effective Date of 1984 Amendment
Amendment by
Effective Date
Section effective on thirtieth day after Feb. 21, 1978, see section 7 of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "nondiscriminatory".
§225. Telecommunications services for hearing-impaired and speech-impaired individuals
(a) Definitions
As used in this section—
(1) Common carrier or carrier
The term "common carrier" or "carrier" includes any common carrier engaged in interstate communication by wire or radio as defined in
(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 transmission services that provide the ability for an individual who has a hearing impairment or speech impairment to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing impairment or speech impairment to communicate using voice communication services by wire or radio. Such term includes services that enable two-way communication between an individual who uses a TDD or other nonvoice terminal device and an individual who does not use such a device.
(b) Availability of telecommunications relay services
(1) In general
In order to carry out the purposes established under
(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 Commission shall have the same authority, power, and functions with respect to common carriers engaged in intrastate communication as the Commission has in administering and enforcing the provisions of this subchapter with respect to any common carrier engaged in interstate communication. Any violation of this section by any common carrier engaged in intrastate communication shall be subject to the same remedies, penalties, and procedures as are applicable to a violation of this chapter by a common carrier engaged in interstate communication.
(c) Provision of services
Each common carrier providing telephone voice transmission services shall, not later than 3 years after July 26, 1990, 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) of this section and with respect to interstate telecommunications 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) of this section; or
(2) with respect to intrastate telecommunications relay services in any State that has a certified program under subsection (f) of this section for such State, if such common carrier (or other entity through which the carrier is providing such relay services) is in compliance with the program certified under subsection (f) of this section for such State.
(d) Regulations
(1) In general
The Commission shall, not later than 1 year after July 26, 1990, prescribe regulations to implement this section, including regulations that—
(A) establish functional requirements, guidelines, and operations procedures for telecommunications relay services;
(B) establish minimum standards that shall be met in carrying out subsection (c) of this section;
(C) require that telecommunications relay services operate every day for 24 hours per day;
(D) require that users of telecommunications relay services pay rates no greater than the rates paid for functionally equivalent voice communication services with respect 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 services;
(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 regulations prescribed to implement this section encourage, consistent with
(3) Jurisdictional separation of costs
(A) In general
Consistent with the provisions of
(B) Recovering costs
Such regulations shall generally provide that costs caused by interstate telecommunications relay services shall be recovered from all subscribers for every interstate service and costs caused by intrastate telecommunications relay services shall be recovered from the intrastate jurisdiction. In a State that has a certified program under subsection (f) of this section, a State commission 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) of this section, 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 establish a State program under this section shall submit documentation 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.
(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, intrastate telecommunications relay services in such State in a manner that meets or exceeds the requirements of regulations prescribed by the Commission under subsection (d) of this section; 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 subsection (d) of this section, 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 section, to ensure continuity of telecommunications relay services.
(g) Complaint
(1) Referral of complaint
If a complaint to the Commission alleges a violation of this section with respect to intrastate telecommunications relay services within a State and certification of the program of such State under subsection (f) of this section is in effect, the Commission shall refer such complaint to such State.
(2) Jurisdiction of Commission
After referring a complaint 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 program is no longer qualified for certification under subsection (f) of this section.
(June 19, 1934, ch. 652, title II, §225, as added
Amendments
1996—Subsec. (a)(1).
Section Referred to in Other Sections
This section is referred to in
§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.
(3) The term "call splashing" means the transfer of a telephone 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 origination 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 entered 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 October 17, 1990.
(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 telecommunications 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 consumer, 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 October 17, 1990, each provider of operator services shall, at a minimum—
(A) identify itself, audibly and distinctly, to the consumer 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;
(C) disclose immediately to the consumer, upon request and at no charge to the consumer—
(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 resolved;
(D) ensure, by contract or tariff, that each aggregator for which such provider is the presubscribed provider of operator services is in compliance with the requirements of subsection (c) of this section and, if applicable, subsection (e)(1) of this section;
(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 subsection (c)(1)(B) of this section or (ii) is blocking access to equal access codes in violation of rules the Commission may prescribe under subsection (e)(1) of this section;
(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 addition to meeting the requirements of paragraph (1), during the 3-year period beginning on the date that is 90 days after October 17, 1990, 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 October 17, 1990, shall—
(A) post on or near the telephone instrument, in plain view of consumers—
(i) the name, address, and toll-free telephone number of the provider of operator services;
(ii) a written disclosure that the rates for all operator-assisted calls are available on request, and that consumers have a right to obtain access to the interstate common carrier of their choice and may contact their preferred interstate common carriers for information on accessing that carrier's service using that telephone; and
(iii) the name and address of the enforcement division of the Common Carrier Bureau of the Commission, to which the consumer may direct complaints regarding 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 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 requirements 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 conduct a rulemaking proceeding pursuant to this subchapter to prescribe regulations to—
(A) protect consumers from unfair and deceptive practices 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 prescribed under this section shall—
(A) contain provisions to implement each of the requirements of this section, other than the requirements established by the rulemaking under subsection (e) of this section on access and compensation; and
(B) contain such other provisions as the Commission determines necessary to carry out this section and the purposes 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 operator services and aggregators to use in the routing and handling of emergency telephone calls; and
(B) establish a policy for requiring providers of operator services to make public information about recent changes in operator services and choices available to consumers in that market.
(e) Separate rulemaking on access and compensation
(1) Access
The Commission,1 shall require—
(A) that each aggregator ensure within a reasonable time that each of its telephones presubscribed to a provider of operator services allows the consumer to obtain access to the provider of operator services desired by the consumer 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
(C) that the requirements described under both subparagraphs (A) and (B) apply.
(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 October 17, 1990, the Commission shall reach a final decision on whether to prescribe such compensation.
(f) Technological capability of equipment
Any equipment and software manufactured or imported more than 18 months after October 17, 1990, 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 measures 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 October 17, 1990, and shall maintain, update regularly, and keep open for public inspection, an informational tariff specifying rates, terms, and conditions, and including commissions, 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 October 17, 1990, 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 subsection (d)(1)(A) and (B) of this section 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 paragraph (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 October 17, 1990, the Commission shall initiate a proceeding to determine whether the regulatory objectives specified in subsection (d)(1)(A) and (B) of this section 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 surcharges, 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 interim 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 proceeding.
(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 Commission shall, within 180 days after submission of the report required under paragraph (3)(B)(iii), complete a rulemaking proceeding pursuant to this subchapter to establish regulations for implementing the requirements of this subchapter (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 relevant factors.
(i) Statutory construction
Nothing in this section shall be construed to alter the obligations, powers, or duties of common carriers or the Commission under the other sections of this chapter.
(June 19, 1934, ch. 652, title II, §226, as added
Amendments
1994—Subsec. (d)(2) to (4).
Subsec. (e)(1).
1992—Subsec. (d)(4)(A).
1990—Subsec. (b)(1).
Subsec. (b)(1)(J).
"(i) is issued by another provider of operator services, and
"(ii) permits the identification of the other provider,
unless the call is billed at a rate not greater than the other provider's rate for the call, the consumer requests a special service that is not available under tariff from the other provider, or the consumer expressly consents to a rate greater than the other provider's rate."
Subsecs. (b)(2), (c)(1), (h)(1)(A).
Congressional Findings
Section 2 of
"(1) the divestiture of AT&T and decisions allowing open entry for competitors in the telephone marketplace produced a variety of new services and many new providers of existing telephone services;
"(2) the growth of competition in the telecommunications market makes it essential to ensure that safeguards are in place to assure fairness for consumers and service providers alike;
"(3) a variety of providers of operator services now compete to win contracts to provide operator services to hotels, hospitals, airports, and other aggregators of telephone business from consumers;
"(4) the mere existence of a variety of service providers in the operator services marketplace is significant in making that market competitive only when consumers are able to make informed choices from among those service providers;
"(5) however, often consumers have no choices in selecting a provider of operator services, and often attempts by consumers to reach their preferred long distance carrier by using a telephone billing card, credit card, or prearranged access code number are blocked;
"(6) a number of State regulatory authorities have taken action to protect consumers using intrastate operator services;
"(7) from January 1988 through February 1990, the Federal Communications Commission received over 4,000 complaints from consumers about operator services;
"(8) those consumers have complained that they are denied access to the interexchange carrier of their choice, that they are deceived about the identity of the company providing operator services for their calls and the rates being charged, that they lack information on what they can do to complain about unfair treatment by an operator service provider, and that they are, accordingly, being deprived of the free choice essential to the operation of a competitive market;
"(9) the Commission has testified that its actions have been insufficient to correct the problems in the operator services industry to date; and
"(10) a combination of industry self-regulation and government regulation is required to ensure that competitive operator services are provided in a fair and reasonable manner."
Section Referred to in Other Sections
This section is referred to in
1 So in original. The comma probably should not appear.
§227. Restrictions on 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 "telephone facsimile machine" means equipment 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.
(3) 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 person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.
(4) The term "unsolicited advertisement" means any material 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.
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States—
(A) to make any call (other than a call made for emergency 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, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient 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 purposes 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 an unsolicited advertisement to a telephone facsimile machine; 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 requirements of this subsection, the Commission—
(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 requirements 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 purpose; 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 unsolicited advertisement; and
(C) may, by rule or order, exempt from the requirements 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.
(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 violated 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 December 20, 1991, 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, telephone 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 disadvantages;
(B) evaluate the categories of public and private entities that would have the capacity to establish and administer 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 solicitations, including those calls exempted under subsection (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 December 20, 1991, 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 imposition of any additional charge to telephone subscribers.
(3) Use of database permitted
The regulations required by paragraph (2) may require the establishment and operation of a single national database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations, and to make that compiled list and parts thereof available for purchase. If the Commission determines to require such a database, such regulations shall—
(A) specify a method by which the Commission will select an entity to administer such database;
(B) require each common carrier providing telephone exchange service, in accordance with regulations prescribed by the Commission, to inform subscribers for telephone exchange service of the opportunity to provide notification, in accordance with regulations established under this paragraph, that such subscriber objects to receiving telephone solicitations;
(C) specify the methods by which each telephone subscriber shall be informed, by the common carrier that provides local exchange service to that subscriber, of (i) the subscriber's right to give or revoke a notification of an objection 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 desiring to make or transmit telephone solicitations will obtain access to the database, by area code or local exchange prefix, 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 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 updating 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 administering or enforcing State law;
(K) prohibit the use of such database for any purpose other than compliance with the requirements of this section and any such State law and specify methods for protection 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 solicitations to notify such person of the requirements of this section and the regulations thereunder.
(4) Considerations required for use of database method
If the Commission determines to require the database 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 recouping 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 subscribers 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 operating on a local basis could be met through special markings of area white pages directories, and (ii) if such directories 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
(C) both such actions.
It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, 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 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.
(6) Relation to subsection (b)
The provisions of this subsection shall not be construed to permit a communication prohibited by subsection (b) of this section.
(d) Technical and procedural standards
(1) Prohibition
It shall be unlawful for any person within 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 manner 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 unless 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 individual 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 December 20, 1991, 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 message, 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 initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual; and
(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) Effect on State law
(1) State law not preempted
Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations 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) of this section, the Commission requires the establishment of a single national database of telephone numbers of subscribers who object to receiving telephone solicitations, a State or local authority 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.
(f) 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 transmissions 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 district 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 application, 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 regulations prescribed under this section, including the requirement that the defendant take such action as is necessary to remove 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, except 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.
(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 violation 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 contained in this subsection shall be construed to prohibit an authorized 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 instituted 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) "Attorney general" defined
As used in this subsection, the term "attorney general" means the chief legal officer of a State.
(June 19, 1934, ch. 652, title II, §227, as added
Amendments
1994—Subsec. (b)(2)(C).
Subsec. (e)(2).
1992—Subsec. (b)(2)(C).
Effective Date; Deadline for Regulations
Section 3(c) of
"(1)
"(2)
Congressional Statement of Findings
Section 2 of
"(1) The use of the telephone to market goods and services to the home and other businesses is now pervasive due to the increased use of cost-effective telemarketing techniques.
"(2) Over 30,000 businesses actively telemarket goods and services to business and residential customers.
"(3) More than 300,000 solicitors call more than 18,000,000 Americans every day.
"(4) Total United States sales generated through telemarketing amounted to $435,000,000,000 in 1990, a more than four-fold increase since 1984.
"(5) Unrestricted telemarketing, however, can be an intrusive invasion of privacy and, when an emergency or medical assistance telephone line is seized, a risk to public safety.
"(6) Many consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers.
"(7) Over half the States now have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operations; therefore, Federal law is needed to control residential telemarketing practices.
"(8) The Constitution does not prohibit restrictions on commercial telemarketing solicitations.
"(9) Individuals' privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices.
"(10) Evidence compiled by the Congress indicates that residential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy.
"(11) Technologies that might allow consumers to avoid receiving such calls are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer.
"(12) Banning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.
"(13) While the evidence presented to the Congress indicates that automated or prerecorded calls are a nuisance and an invasion of privacy, regardless of the type of call, the Federal Communications Commission should have the flexibility to design different rules for those types of automated or prerecorded calls that it finds are not considered a nuisance or invasion of privacy, or for noncommercial calls, consistent with the free speech protections embodied in the First Amendment of the Constitution.
"(14) Businesses also have complained to the Congress and the Federal Communications Commission that automated or prerecorded telephone calls are a nuisance, are an invasion of privacy, and interfere with interstate commerce.
"(15) The Federal Communications Commission should consider adopting reasonable restrictions on automated or prerecorded calls to businesses as well as to the home, consistent with the constitutional protections of free speech."
Section Referred to in Other Sections
This section is referred to in
§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 October 28, 1992, 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 chapter 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 providers 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) of this section be offered only through the use of certain telephone number prefixes and area codes.
(c) Common carrier obligations
Within 270 days after October 28, 1992, the Commission shall, by regulation, 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 telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) of this section shall require by contract or tariff that such provider comply with the provisions of titles II and III of the Telephone Disclosure and Dispute Resolution Act [
(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) of this section to a provider of a pay-per-call service shall make readily available on request to Federal and State agencies 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 considers 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) of this section to a provider of pay-per-call services shall terminate, in accordance with procedures specified in such regulations, 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 [
(4) Subscriber disconnection prohibited
A common carrier shall not disconnect or interrupt a subscriber's local exchange telephone service or long distance telephone service because 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 feasible) 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 subscribers for a period of 60 days after the issuance of the regulations under subsection (b) of this section, 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
(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 subparagraph (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 recovered by contract or tariff, but such costs may not be recovered from local or long-distance ratepayers. Nothing in this subsection precludes a common carrier from filing its rates and regulations regarding blocking and presubscription in its interstate tariffs.
(6) Verification of charitable status
A common carrier that assigns by contract or tariff a telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) of this section 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 organization for which contributions are solicited.
(7) Billing for 800 calls
A common carrier shall prohibit 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 completing the call, a charge for the call;
(B) the calling party being connected to a pay-per-call service;
(C) the calling party being charged for information conveyed during the call unless—
(i) the calling party has a written agreement (including 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 information 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 offered and includes—
(i) the rate at which charges are assessed for the information;
(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 information; 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 information 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 number 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 number or other subscriber-specific identifier and requires a subscriber to use this number or identifier to obtain access to the information provided and includes instructions on its use; and
(ii) assures that any charges for services accessed by use of the subscriber's personal identification number or subscriber-specific identifier be assessed to subscriber's source of payment elected pursuant to subparagraph (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 common carrier of a complaint by any person that an information provider is in violation of the provisions of this section, 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 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 subchapter V of this chapter.
(9) Charges by credit, prepaid, debit, charge, or calling card in absence of agreement
For purposes of paragraph (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;
(C) explains that the charges must be billed on either a credit, prepaid, debit, charge, or calling card;
(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 before 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 repeat 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 adequate and sufficient notice of a price increase.
(11) "Calling card" defined
As used in this subsection, the term "calling card" means an identifying number or code unique to the individual, that is issued to the individual by a common carrier and enables the individual to be charged by means of a phone bill for charges incurred independent of where the call originates.
(d) Billing and collection practices
The regulations required 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 subsection (b)(5) of this section 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 [
(B) under such other circumstances as the Commission determines necessary in order to protect subscribers from abusive practices;
(2) establish a local or a toll-free telephone number to answer 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) of this section, 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 common carrier's telephone subscribers, to all new subscribers, and to all subscribers requesting service at a new location, a disclosure 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 minimum, the type of service, the amount of the charge, and the date, time, and duration of the call; and
(C) identify the toll-free number established pursuant to paragraph (2).
(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 regulation prescribed pursuant to, title II or III of the Telephone Disclosure and Dispute Resolution Act [
(2) Civil liability
No cause of action may be brought in any court or administrative agency against any common carrier 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 [
(f) Special provisions
(1) Consumer refund requirements
The regulations required by subsection (d) of this section shall establish procedures, consistent with the provisions of titles II and III of the Telephone Disclosure and Dispute Resolution Act [
(2) Recovery of costs
The regulations prescribed by the Commission under this section shall permit a common carrier 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 Commission, within one year after October 28, 1992, shall submit to the Congress the Commission's recommendations 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, common 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 carrier, local exchange carrier, or any other person from the obligation 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 preclude 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 preclude any State from enacting and enforcing additional and complementary oversight and regulatory systems or procedures, or both, so long as such systems and procedures govern intrastate services and do not significantly impede the enforcement 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 October 28, 1992, in fulfilling the requirements of this section to the extent that such regulations are consistent with the provisions of this section.
(h) Effect on dial-a-porn prohibitions
Nothing in this section shall affect the provisions of
(i) "Pay-per-call services" defined
For purposes of this section—
(1) The term "pay-per-call services" means any service—
(A) in which any person provides or purports to provide—
(i) audio information or audio entertainment produced or packaged by such person;
(ii) access to simultaneous voice conversation services; or
(iii) any service, including the provision of a product, 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-interval 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) of this section.
(2) Such term does not include directory services provided by a common carrier or its affiliate or by a local exchange carrier or its affiliate, or any service for which users are assessed charges only after entering into a presubscription or comparable arrangement with the provider of such service.
(June 19, 1934, ch. 652, title II, §228, as added
References in Text
The Telephone Disclosure and Dispute Resolution Act, referred to in subsecs. (c)(1), (3), (d)(1)(A), (e), and (f)(1), is
Amendments
1996—Subsec. (c)(7)(C).
Subsec. (c)(7)(E).
Subsec. (c)(8) to (11).
Subsec. (i)(2).
1994—Subsec. (c)(2) to (7).
Subsec. (c)(7)(D).
Effective Date of 1996 Amendment
Section 701(a)(3) of
Regulations
Section 701(a)(2) of
Section Referred to in Other Sections
This section is referred to in title 15 section 5714.
§229. Communications Assistance for Law Enforcement Act compliance
(a) In general
The Commission shall prescribe such rules as are necessary to implement the requirements of the Communications Assistance for Law Enforcement Act [
(b) Systems security and integrity
The rules prescribed pursuant to subsection (a) of this section shall include rules to implement section 105 of the Communications Assistance for Law Enforcement Act [
(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 interception or access with or without such authorization; and
(3) to submit to the Commission the policies and procedures 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 subsection (b)(3) of this section and shall order a common carrier to modify any such policy or procedure that the Commission determines does not comply 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 prescribed under this section.
(d) Penalties
For purposes of this chapter, a violation by an officer or employee of any policy or procedure adopted by a common carrier pursuant to subsection (b) of this section, or of a rule prescribed by the Commission pursuant to subsection (a) of this section, shall be considered to be a violation by the carrier of a rule prescribed by the Commission pursuant to this chapter.
(e) Cost recovery for Communications Assistance for Law Enforcement Act compliance
(1) Petitions authorized
A common carrier may petition the Commission to adjust charges, practices, classifications, and regulations to recover costs expended for making modifications to equipment, facilities, or services pursuant to the requirements of section 103 of the Communications Assistance 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 communication by wire or radio by a common carrier, allow carriers to adjust such charges, practices, classifications, and regulations in order to carry out the purposes of this chapter.
(3) Joint board
The Commission shall convene a Federal-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 regulations under the jurisdiction of the Commission.
(June 19, 1934, ch. 652, title II, §229, as added
References in Text
The Communications Assistance for Law Enforcement Act, referred to in subsecs. (a) and (e), is title I of
§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 educational 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 minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment 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 individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
(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 restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).1
(d) Obligations of interactive computer service
A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer 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 commercially 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, current 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
(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 consistent 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
Nothing 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:
(1) Internet
The term "Internet" means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service
The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer 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 libraries or educational institutions.
(3) Information content provider
The term "information content provider" means any person or entity that is responsible, 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 software 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.
(June 19, 1934, ch. 652, title II, §230, as added
References in Text
The Electronic Communications Privacy Act of 1986, referred to in subsec. (e)(4), is
Codification
Section 509 of
Amendments
1998—Subsec. (d).
Subsec. (d)(1).
Subsecs. (e), (f).
Effective Date of 1998 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "subparagraph (A)."
§231. Restriction of access by minors to materials commercially distributed by means of World Wide Web that are harmful to minors
(a) Requirement to restrict access
(1) Prohibited conduct
Whoever knowingly and with knowledge of the character of the material, in interstate or foreign 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 paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation 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 violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(b) Inapplicability of carriers and other service providers
For purposes of subsection (a) of this section, a person shall not be considered 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 Internet access service;
(3) a person engaged in the business of providing an Internet information location tool; or
(4) similarly engaged in the transmission, storage, retrieval, 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, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsection (c) of this section or
(c) Affirmative defense
(1) Defense
It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors—
(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 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 authorized 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 making a communication described in subsection (a) of this section—
(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 written or electronic consent of—
(i) the individual concerned, if the individual is an adult; or
(ii) the individual's parent or guardian, if the individual 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 recipient of such communication.
(2) Exceptions
A person making a communication described in subsection (a) of this section may disclose such information if the disclosure is—
(A) necessary to make the communication or conduct a legitimate business activity related to making the communication; or
(B) made pursuant to a court order authorizing such disclosure.
(e) Definitions
For purposes of this subsection,1 the following definitions shall apply:
(1) By means of the World Wide Web
The term "by means of the World Wide Web" means by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.
(2) Commercial purposes; engaged in the business
(A) Commercial purposes
A person shall be considered 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 communication, 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 result 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 principal business or source of income). A person may be considered 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 combination 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 telecommunications 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 communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that—
(A) the average person, applying contemporary community 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 patently offensive with respect to minors, an actual or simulated 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.
(June 19, 1934, ch. 652, title II, §231, as added
Effective Date
Section effective 30 days after Oct. 21, 1998, see section 1406 of
Congressional Findings
"(1) while custody, care, and nurture of the child resides first with the parent, the widespread 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 control;
"(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 educators 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 legitimate 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 continue efforts to find ways to protect children from being exposed to harmful material found on the Internet."
Study by Commission on Online Child Protection
"(a)
"(b)
"(1)
"(A) providers of Internet filtering or blocking services or software;
"(B) Internet access services;
"(C) labeling or ratings services;
"(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 remain members.
"(2)
"(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)
"(c)
"(d)
"(e)
"(1)
"(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 [
"Any methods so identified shall be used as the basis for making legislative recommendations to the Congress under subsection (d)(3).
"(2)
"(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 minors to such material.
"(3)
"(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 appropriate.
"(f)
"(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 technology 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 Communications Act of 1934 [
"(g)
"(1)
"(2)
"(3)
"(4)
"(l)[h]
"(m)[i]
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "section,".
Part II—Development of Competitive Markets
§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
(2) not to install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to
(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 extent 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 telephone 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 unreasonable 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
(5) Reciprocal compensation
The duty to establish reciprocal compensation arrangements for the transport and termination of telecommunications.
(c) Additional obligations of incumbent local exchange carriers
In addition to the duties contained in subsection (b) of this section, each incumbent local exchange carrier has the following duties:
(1) Duty to negotiate
The duty to negotiate in good faith in accordance with
(2) Interconnection
The duty to provide, for the facilities and equipment of any requesting telecommunications carrier, interconnection with the local exchange carrier's network—
(A) for the transmission and routing of telephone exchange service and exchange access;
(B) at any technically feasible point within the carrier'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, reasonable, and nondiscriminatory, in accordance with the terms and conditions of the agreement and the requirements of this section and
(3) Unbundled access
The duty to provide, to any requesting telecommunications carrier for the provision of a telecommunications service, nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory in accordance with the terms and conditions of the agreement and the requirements of this section and
(4) Resale
The duty—
(A) to offer for resale at wholesale rates any telecommunications 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 commission may, consistent with regulations prescribed by the Commission under this section, prohibit a reseller that obtains 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 nondiscriminatory, 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 carrier 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 February 8, 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 elements should be made available for purposes of subsection (c)(3) of this section, the Commission shall consider, at a minimum, whether—
(A) access to such network elements as are proprietary in nature is necessary; and
(B) the failure to provide access to such network elements 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 prescribing and enforcing regulations to implement the requirements of this section, the Commission shall not preclude the enforcement of any regulation, order, or policy of a State commission that—
(A) establishes access and interconnection obligations of local exchange carriers;
(B) is consistent with the requirements of this section; and
(C) does not substantially prevent implementation of the requirements of this section and the purposes of this part.
(e) Numbering administration
(1) Commission authority and jurisdiction
The Commission 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 Commission 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 portability shall be borne by all telecommunications carriers on a competitively neutral basis as determined by the Commission.
(3) 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 making 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 October 26, 1999.
(f) Exemptions, suspensions, and modifications
(1) Exemption for certain rural telephone companies
(A) Exemption
Subsection (c) of this section shall not apply to a rural telephone company until (i) such company has received a bona fide request for interconnection, services, or network elements, and (ii) the State commission determines (under subparagraph (B)) that such request is not unduly economically burdensome, is technically feasible, and is consistent with
(B) State termination of exemption and implementation 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 terminate the exemption under subparagraph (A). Within 120 days after the State commission receives notice of the request, the State commission shall terminate the exemption if the request is not unduly economically burdensome, is technically feasible, and is consistent with
(C) Limitation on exemption
The exemption provided by this paragraph shall not apply with respect to a request under subsection (c) of this section from a cable operator providing video programming, and seeking to provide any telecommunications service, in the area in which the rural telephone company provides video programming. The limitation contained in this subparagraph shall not apply to a rural telephone company that is providing video programming on February 8, 1996.
(2) Suspensions and modifications for rural carriers
A local exchange carrier with fewer than 2 percent of the Nation's subscriber lines installed in the aggregate nationwide may petition a State commission for a suspension or modification of the application of a requirement or requirements of subsection (b) or (c) of this section to telephone exchange service facilities 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 unduly economically burdensome; or
(iii) to avoid imposing a requirement that is technically infeasible; and
(B) is consistent with the public interest, convenience, and necessity.
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 enforcement of the requirement or requirements to which the petition applies with respect to the petitioning carrier or carriers.
(g) Continued enforcement of exchange access and interconnection requirements
On and after February 8, 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 nondiscriminatory interconnection restrictions and obligations (including receipt of compensation) that apply to such carrier on the date immediately preceding February 8, 1996, under any court order, consent decree, or regulation, order, or policy of the Commission, until such restrictions and obligations are explicitly superseded by regulations prescribed by the Commission after February 8, 1996. During the period beginning on February 8, 1996, and until such restrictions and obligations are so superseded, such restrictions and obligations shall be enforceable in the same manner as regulations of the Commission.
(h) "Incumbent local exchange carrier" defined
(1) Definition
For purposes of this section, the term "incumbent local exchange carrier" means, with respect to an area, the local exchange carrier that—
(A) on February 8, 1996, provided telephone exchange service in such area; and
(B)(i) on February 8, 1996, 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 February 8, 1996, became a successor or assign of a member described in clause (i).
(2) Treatment of comparable carriers as incumbents
The Commission may, by rule, provide for the treatment of a local exchange carrier (or class or category thereof) as an incumbent local exchange carrier for purposes of this section if—
(A) such carrier occupies a position in the market for telephone exchange service within an area that is comparable to the position occupied by a carrier described in paragraph (1);
(B) such carrier has substantially replaced an incumbent local exchange carrier described in paragraph (1); and
(C) such treatment is consistent with the public interest, convenience, and necessity and the purposes of this section.
(i) Savings provision
Nothing in this section shall be construed to limit or otherwise affect the Commission's authority under
(June 19, 1934, ch. 652, title II, §251, as added
Amendments
1999—Subsec. (e)(3).
Section Referred to in Other Sections
This section is referred to in
§252. Procedures for negotiation, arbitration, 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
(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 mediate any differences arising in the course of the negotiation.
(b) Agreements arrived at through compulsory arbitration
(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 petition, provide the State commission all relevant documentation 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 petition.
(3) Opportunity to respond
A non-petitioning party to a negotiation under this section may respond to the other party'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 information 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 reasonable request from the State commission, then the State commission may proceed on the basis of the best information 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 subsection (c) of this section 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 negotiations, 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 commission shall be considered a failure to negotiate in good faith.
(c) Standards for arbitration
In resolving by arbitration under subsection (b) of this section 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 requirements of
(2) establish any rates for interconnection, services, or network elements according to subsection (d) of this section; 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 reasonable rate for the interconnection of facilities and equipment for purposes of subsection (c)(2) of
(A) shall be—
(i) based on the cost (determined without reference to a rate-of-return or other rate-based proceeding) 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 traffic
(A) In general
For the purposes of compliance by an incumbent local exchange carrier with
(i) such terms and conditions provide for the mutual and reciprocal recovery by each carrier of costs associated with the transport and termination on each 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 mutual recovery of costs through the offsetting of reciprocal obligations, including arrangements that waive mutual recovery (such as bill-and-keep arrangements); or
(ii) to authorize the Commission or any State commission to engage in any rate regulation proceeding to establish with particularity the additional costs of transporting or terminating calls, or to require carriers to maintain records with respect to the additional costs of such calls.
(3) Wholesale prices for telecommunications services
For the purposes of
(e) Approval by State commission
(1) Approval required
Any interconnection agreement adopted by negotiation or arbitration shall be submitted for approval to the State commission. A State commission to which an agreement is submitted shall approve or reject the agreement, 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) of this section if it finds that—
(i) the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement; or
(ii) the implementation of such agreement or portion is not consistent with the public interest, convenience, and necessity; or
(B) an agreement (or any portion thereof) adopted by arbitration under subsection (b) of this section if it finds that the agreement does not meet the requirements of
(3) Preservation of authority
Notwithstanding paragraph (2), but subject to
(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 negotiation under subsection (a) of this section, or within 30 days after submission by the parties of an agreement adopted by arbitration under subsection (b) of this section, 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 exclusive 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 requirements of
(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
(2) State commission review
A State commission may not approve such statement unless such statement complies with subsection (d) of this section and
(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 paragraph (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 a statement that has been permitted to take effect under subparagraph (B) of such paragraph or from approving or disapproving 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
(g) Consolidation of State proceedings
Where not inconsistent with the requirements of this chapter, a State commission may, to the extent practical, consolidate proceedings under
(h) Filing required
A State commission shall make a copy of each agreement approved under subsection (e) of this section and each statement approved under subsection (f) of this section available for public inspection and copying within 10 days after the agreement or statement is approved. The State commission may charge a reasonable and nondiscriminatory 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) "Incumbent local exchange carrier" defined
For purposes of this section, the term "incumbent local exchange carrier" has the meaning provided in
(June 19, 1934, ch. 652, title II, §252, as added
Section Referred to in Other Sections
This section is referred to in
§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 effect 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 neutral basis and consistent with
(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 competitively 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 government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.
(e) Commercial mobile service providers
Nothing in this section shall affect the application of
(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 requirements in
(1) to a service area served by a rural telephone company that has obtained an exemption, suspension, or modification of
(2) to a provider of commercial mobile services.
(June 19, 1934, ch. 652, title II, §253, as added
Section Referred to in Other Sections
This section is referred to in
§254. Universal service
(a) Procedures to review universal service requirements
(1) Federal-State Joint Board on universal service
Within one month after February 8, 1996, the Commission shall institute and refer to a Federal-State Joint Board under
(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 February 8, 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 subsequent 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 advancement of universal service on the following principles:
(1) Quality and rates
Quality services should be available at just, reasonable, and affordable rates.
(2) Access to advanced services
Access to advanced telecommunications and information services should be provided 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, including 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 preservation 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) of this section.
(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, convenience, and necessity and are consistent with this chapter.
(c) Definition
(1) In general
Universal service is an evolving level of telecommunications services that the Commission shall establish periodically under this section, taking into account advances in telecommunications and information technologies and services. The Joint Board in recommending, and the Commission 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;
(C) are being deployed in public telecommunications networks by telecommunications carriers; and
(D) are consistent with the public interest, convenience, and necessity.
(2) Alterations and modifications
The Joint Board may, from time to time, recommend to the Commission modifications 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) of this section.
(d) Telecommunications carrier contribution
Every telecommunications carrier that provides interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal 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 carrier's contribution to the preservation and advancement of universal service would be de minimis. Any other provider of interstate telecommunications may be required to contribute to the preservation and advancement of universal service if the public interest so requires.
(e) Universal service support
After the date on which Commission regulations implementing this section take effect, only an eligible telecommunications carrier designated under
(f) State authority
A State may adopt regulations not inconsistent with the Commission's rules to preserve and advance universal service. Every telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equitable 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 service within that State only to the extent that such regulations adopt additional specific, predictable, and sufficient mechanisms to support 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 February 8, 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 services 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 similar services in urban areas in that State. A telecommunications 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 a part of its obligation to participate in the mechanisms to preserve and advance universal service.
(B) Educational providers and libraries
All telecommunications 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) of this section, provide such services to elementary schools, secondary 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 appropriate 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 discount treated as an offset to its obligation to contribute 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 universal 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 telecommunications and information services for all public and nonprofit elementary and secondary school classrooms, health care providers, and libraries; and
(B) to define the circumstances under which a telecommunications carrier may be required to connect its network to such public institutional telecommunications users.
(3) Terms and conditions
Telecommunications services and network capacity provided to a public institutional telecommunications 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 subsection 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 (5)(A) with an endowment of more than $50,000,000, or is a library or library consortium not eligible for assistance from a State library administrative agency under the Library Services and Technology Act [
(5) 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 paragraphs (14) and (25), respectively, of
(B) Health care provider
The term "health care provider" means—
(i) post-secondary educational institutions offering health care instruction, teaching hospitals, and medical 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.
(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 Assistance 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.
(k) Subsidy of competitive services prohibited
A telecommunications carrier may not use services that are not competitive to subsidize services that are subject to competition. The Commission, with respect to interstate services, and the States, with respect to intrastate services, shall establish any necessary cost allocation 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.
(June 19, 1934, ch. 652, title II, §254, as added
References in Text
The Library Services and Technology Act, referred to in subsec. (h)(4), is subtitle B (§§211–263) of title II of
Amendments
1996—Subsec. (h)(4).
Universal Service Fund Payment Schedule
Section Referred to in Other Sections
This section is referred to in
§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
(2) Readily achievable
The term "readily achievable" has the meaning given to it by
(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 telecommunications 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) of this section are not readily achievable, such a manufacturer or provider shall ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable.
(e) Guidelines
Within 18 months after February 8, 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 action 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.
(June 19, 1934, ch. 652, title II, §255, as added
Section Referred to in Other Sections
This section is referred to in
§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 products 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 information between and across telecommunications networks.
(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 effective and efficient interconnection of public telecommunications networks used to provide telecommunications service; and
(2) may participate, in a manner consistent with its authority and practice prior to February 8, 1996, 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 provide telecommunications service;
(B) network capabilities and services by individuals with disabilities; and
(C) information services by subscribers of rural telephone companies.
(c) Commission's authority
Nothing in this section shall be construed as expanding or limiting any authority that the Commission may have under law in effect before February 8, 1996.
(d) "Public telecommunications network interconnectivity" defined
As used in this section, the term "public telecommunications network interconnectivity" means the ability of two or more public telecommunications networks used to provide telecommunications service to communicate and exchange information without degeneration, and to interact in concert with one another.
(June 19, 1934, ch. 652, title II, §256, as added
Section Referred to in Other Sections
This section is referred to in
§257. Market entry barriers proceeding
(a) Elimination of barriers
Within 15 months after February 8, 1996, the Commission shall complete a proceeding for the purpose of identifying and eliminating, by regulations pursuant to its authority under this chapter (other than this section), market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications services and information services, or in the provision of parts or services to providers of telecommunications services and information services.
(b) National policy
In carrying out subsection (a) of this section, the Commission shall seek to promote the policies and purposes of this chapter 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) of this section, 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) of this section and that can be prescribed consistent with the public interest, convenience, and necessity; and
(2) the statutory barriers identified under subsection (a) of this section that the Commission recommends be eliminated, consistent with the public interest, convenience, and necessity.
(June 19, 1934, ch. 652, title II, §257, as added
§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 telephone exchange service or telephone toll service except in accordance with such verification procedures as the Commission shall prescribe. Nothing in this section shall preclude any State commission from enforcing such procedures with respect to intrastate services.
(b) Liability for charges
Any telecommunications carrier that violates the verification procedures described in subsection (a) of this section and that collects charges for telephone exchange service or telephone 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 remedies provided by this subsection are in addition to any other remedies available by law.
(June 19, 1934, ch. 652, title II, §258, as added
§259. Infrastructure sharing
(a) Regulations required
The Commission shall prescribe, within one year after February 8, 1996, regulations that require incumbent local exchange carriers (as defined in
(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 section applies to take any action that is economically unreasonable or that is contrary to the public interest;
(2) permit, but shall not require, the joint ownership or operation of public switched network infrastructure and services by or among such local exchange carrier and a qualifying carrier;
(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 functions made available to a qualifying carrier in accordance with regulations issued pursuant to this section;
(4) ensure that such local exchange carrier makes such infrastructure, technology, information, facilities, or functions available to a qualifying carrier on just and reasonable terms and conditions that permit such qualifying carrier to fully benefit from the economies of scale and scope of such local exchange carrier, as determined in accordance with guidelines prescribed by the Commission in regulations issued pursuant to this section;
(5) establish conditions that promote cooperation between local exchange carriers to which this section applies and qualifying carriers;
(6) not require a local exchange carrier to which this section 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, contracts, or other arrangements showing the rates, terms, and conditions under which such carrier is making available public switched network infrastructure and functions under this section.
(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 telecommunications services and equipment, including any software or upgrades of software integral to the use or operation of such telecommunications equipment.
(d) "Qualifying carrier" defined
For purposes of this section, the term "qualifying carrier" means a telecommunications carrier that—
(1) lacks economies of scale or scope, as determined in accordance with regulations prescribed by the Commission pursuant 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 telecommunications carrier under
(June 19, 1934, ch. 652, title II, §259, as added
§260. Provision of telemessaging service
(a) Nondiscrimination safeguards
Any local exchange carrier subject to the requirements of
(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 telemessaging service operations in its provision of telecommunications services.
(b) Expedited consideration of complaints
The Commission shall establish procedures for the receipt and review of complaints concerning violations of subsection (a) of this section or the regulations thereunder that result in material financial harm to a provider of telemessaging 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 violation occurred, the Commission shall, within 60 days after receipt of the complaint, order the local exchange carrier and any affiliates to cease engaging in such violation pending such final determination.
(c) "Telemessaging service" defined
As used in this section, the term "telemessaging 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.
(June 19, 1934, ch. 652, title II, §260, as added
§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 February 8, 1996, in fulfilling the requirements of this part, to the extent that such regulations are not inconsistent with the provisions of this part.
(b) Existing State regulations
Nothing in this part shall be construed to prohibit any State commission from enforcing regulations prescribed prior to February 8, 1996, or from prescribing regulations after February 8, 1996, 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 telecommunications carrier for intrastate services that are necessary to further competition in the provision of telephone exchange service or exchange access, as long as the State's requirements are not inconsistent with this part or the Commission's regulations to implement this part.
(June 19, 1934, ch. 652, title II, §261, as added
Part III—Special Provisions Concerning Bell Operating Companies
§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) of this section) if the Commission approves the application of such company for such State under subsection (d)(3) of this section.
(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 February 8, 1996, subject to subsection (j) of this section.
(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 (g) of this section) originating in any State after February 8, 1996.
(4) Termination
Nothing in this section prohibits a Bell operating company or any of its affiliates from providing termination for interLATA services, subject to subsection (j) of this section.
(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 requirements 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
(B) Failure to request access
A Bell operating company meets the requirements of this subparagraph if, after 10 months after February 8, 1996, no such provider has requested the access and interconnection described in subparagraph (A) before the date which is 3 months before the date the company makes its application under subsection (d)(1) of this section, 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 effect by the State commission under
(2) Specific interconnection requirements
(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 interconnection pursuant to one or more agreements described 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 requirements of subparagraph (B) of this paragraph.
(B) Competitive checklist
Access or interconnection provided or generally offered by a Bell operating company to other telecommunications carriers meets the requirements of this subparagraph if such access and interconnection includes each of the following:
(i) Interconnection in accordance with the requirements of
(ii) Nondiscriminatory access to network elements in accordance with the requirements of
(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
(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 numbers; 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 telephone exchange service customers. After that date, compliance with such guidelines, plan, or rules.
(x) Nondiscriminatory access to databases and associated signaling necessary for call routing and completion.
(xi) Until the date by which the Commission issues regulations pursuant to
(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
(xiii) Reciprocal compensation arrangements in accordance with the requirements of
(xiv) Telecommunications services are available for resale in accordance with the requirements of
(d) Administrative provisions
(1) Application to Commission
On and after February 8, 1996, a Bell operating 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 promptly of any application under paragraph (1). Before making any determination under this subsection, the Commission shall consult with the Attorney General, and if the Attorney General submits any comments in writing, such comments 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 General shall provide to the Commission an evaluation of the application using any standard the Attorney General considers appropriate. The Commission shall give substantial weight to the Attorney General's evaluation, but such evaluation shall not have any preclusive effect on any Commission decision under paragraph (3).
(B) Consultation with State commissions
Before making any determination under this subsection, the Commission 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) of this section.
(3) Determination
Not later than 90 days after receiving an application under paragraph (1), the Commission shall issue a written determination approving or denying the authorization requested in the application for each State. The Commission 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) of this section and—
(i) with respect to access and interconnection provided pursuant to subsection (c)(1)(A) of this section, has fully implemented the competitive checklist in subsection (c)(2)(B) of this section; or
(ii) with respect to access and interconnection generally offered pursuant to a statement under subsection (c)(1)(B) of this section, such statement offers all of the items included in the competitive checklist in subsection (c)(2)(B) of this section;
(B) the requested authorization will be carried out in accordance with the requirements of
(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) of this section.
(5) Publication
Not later than 10 days after issuing a determination under paragraph (3), the Commission shall publish in the Federal Register a brief description of the determination.
(6) Enforcement of conditions
(A) Commission authority
If at any time after the approval of an application under paragraph (3), the Commission determines that a Bell operating company has ceased to meet any of the conditions required for such approval, 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 subchapter V of this chapter; or
(iii) suspend or revoke such approval.
(B) Receipt and review of complaints
The Commission shall establish procedures for the review of complaints 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 services
Until a Bell operating company is authorized pursuant to subsection (d) of this section to provide interLATA services in an in-region State, or until 36 months have passed since February 8, 1996, whichever is earlier, 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 obtained from such company pursuant to
(2) IntraLATA toll dialing parity
(A) Provision required
A Bell operating company granted authority to provide interLATA services under subsection (d) of this section shall provide intraLATA toll dialing parity 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, requiring a Bell operating company to implement intraLATA toll dialing parity, a State may not require a Bell operating 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 February 8, 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
Neither subsection (a) of this section nor
(g) "Incidental interLATA services" defined
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 programming, or other programming services;
(C) to distributors of audio programming or video programming that such company or affiliate owns or controls, or is licensed 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 services over dedicated facilities to or for elementary and secondary schools as defined in
(3) of commercial mobile services in accordance with
(4) of a service that permits a customer that is located in one LATA to retrieve stored information from, or file information for storage in, information storage facilities of such company that are located in another LATA;
(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) of this section are intended to be narrowly construed. The interLATA services provided under subparagraph (A), (B), or (C) of subsection (g)(1) of this section are limited to those interLATA transmissions incidental to the provision by a Bell operating company or its affiliate of video, audio, and other programming services that the company or its affiliate is engaged in providing to the public. The Commission shall ensure that the provision of services authorized under subsection (g) of this section by a Bell operating company or its affiliate will not adversely affect telephone exchange service ratepayers or competition in any telecommunications 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 February 8, 1996.
(2) Audio programming services
The term "audio programming services" means programming provided by, or generally 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
(j) Certain service applications treated as in-region service applications
For purposes of this section, a Bell operating company application to provide 800 service, private line service, 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 carrier,
shall be considered an in-region service subject to the requirements of subsection (b)(1) of this section.
(June 19, 1934, ch. 652, title II, §271, as added
Section Referred to in Other Sections
This section is referred to in
§272. Separate affiliate; safeguards
(a) Separate affiliate required for competitive activities
(1) In general
A Bell operating company (including any affiliate) which is a local exchange carrier that is subject to the requirements of
(A) are separate from any operating company entity that is subject to the requirements of
(B) meet the requirements of subsection (b) of this section.
(2) Services for which a separate affiliate is required
The services for which a separate affiliate is required by paragraph (1) are:
(A) Manufacturing activities (as defined in
(B) Origination of interLATA telecommunications services, other than—
(i) incidental interLATA services described in paragraphs (1), (2), (3), (5), and (6) of
(ii) out-of-region services described in
(iii) previously authorized activities described in
(C) InterLATA information services, other than electronic publishing (as defined in
(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 affiliate described in subsection (a) of this section, 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 described in subsection (a) of this section in accordance with accounting principles designated or approved by the Commission.
(d) Biennial audit
(1) General requirement
A company required to operate 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) of this section.
(2) Results submitted to Commission; State commissions
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 provides service, which shall make such results available for public 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 accounts and records of each company and of its affiliates necessary to verify transactions conducted with that company that are relevant to the specific activities permitted under this section and that are necessary for the regulation of rates;
(B) the Commission and the State commission shall have access to the working papers and supporting materials of any auditor who performs an audit under this section; and
(C) the State commission shall implement appropriate procedures to ensure the protection of any proprietary information 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
(1) shall fulfill any requests from an unaffiliated entity for telephone exchange service and exchange access within a period no longer than the period in which it provides such telephone 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 described in subsection (a) of this section unless such facilities, services, or information 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) of this section, or impute to itself (if using the access for its provision of its own services), an amount for access to its telephone exchange service 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 appropriately allocated.
(f) Sunset
(1) Manufacturing and long distance
The provisions of this section (other than subsection (e) of this section) 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 telecommunications services under
(2) InterLATA information services
The provisions of this section (other than subsection (e) of this section) shall cease to apply with respect to the interLATA information services of a Bell operating company 4 years after February 8, 1996, unless the Commission extends 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 chapter 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 entities offering the same or similar service to market and sell its telephone exchange services.
(2) Bell operating company sales of affiliate services
A Bell operating company may not market or sell interLATA service provided by an affiliate required by this section within any of its in-region States until such company is authorized to provide interLATA services in such State under
(3) Rule of construction
The joint marketing and sale of services permitted under this subsection shall not be considered to violate the nondiscrimination provisions of subsection (c) of this section.
(h) Transition
With respect to any activity in which a Bell operating company is engaged on February 8, 1996, such company shall have one year from February 8, 1996, to comply with the requirements of this section.
(June 19, 1934, ch. 652, title II, §272, as added
Section Referred to in Other Sections
This section is referred to in
§273. Manufacturing by Bell operating companies
(a) Authorization
A Bell operating company may manufacture 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
(b) Collaboration; research and royalty agreements
(1) Collaboration
Subsection (a) of this section 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 development of hardware, software, or combinations thereof related to such equipment.
(2) Certain research arrangements; royalty agreements
Subsection (a) of this section shall not prohibit a Bell operating company from—
(A) engaging in research activities related to manufacturing, and
(B) entering into royalty agreements with manufacturers of telecommunications equipment.
(c) Information requirements
(1) Information on protocols and technical requirements
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 connection 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 company 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 Commission 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 telephone exchange service facilities that a Bell operating company makes available to any manufacturing affiliate or any unaffiliated manufacturer.
(4) Planning information
Each Bell operating company shall provide, to interconnecting carriers providing telephone exchange service, timely information on the planned deployment of telecommunications equipment.
(d) Manufacturing limitations for standard-setting organizations
(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 operating 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 Research, Inc., or any successor entity, from engaging in any activity in which it is lawfully engaged on February 8, 1996. Nothing provided in this subsection shall render Bell Communications Research, Inc., or any successor entity, a common carrier under this subchapter. Nothing in this subsection restricts any manufacturer from engaging in any activity in which it is lawfully engaged on February 8, 1996.
(2) Proprietary information
Any entity which establishes standards for telecommunications equipment or customer premises equipment, or generic network requirements for such equipment, or certifies telecommunications equipment or customer premises equipment, shall be prohibited from releasing or otherwise using any proprietary information, designated 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 prohibited 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 telecommunications 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, consistent 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 affiliate in the establishment of standards, generic requirements, or product certification;
(ii) not disclose to the manufacturing affiliate any proprietary 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 certification for telecommunications equipment or customer premises equipment to engage jointly in sales or marketing of any such equipment with the affiliated manufacturer.
(4) Standard-setting entities
Any entity that is not an accredited standards development organization and that establishes industry-wide standards for telecommunications equipment or customer premises equipment, or industry-wide generic network requirements for such equipment, or that certifies 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 substantial modification of an existing industry-wide standard or industry-wide generic requirement for, telecommunications equipment or customer premises equipment only in compliance with the following procedure—
(i) such entity shall issue a public notice of its consideration of a proposed industry-wide standard or industry-wide generic requirement;
(ii) such entity shall issue a public invitation to interested industry parties to fund and participate in such efforts on a reasonable and nondiscriminatory basis, administered in such a manner as not to unreasonably 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 industry-wide standard or industry-wide generic requirement, 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 resolution 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 activities, except that if no dispute resolution process is agreed to by all the parties, a funding party may utilize the dispute resolution procedures established pursuant to paragraph (5) of this subsection;
(B) engage in product certification for telecommunications equipment or customer premises equipment manufactured by unaffiliated entities only if—
(i) such activity is performed pursuant to published criteria;
(ii) such activity is performed pursuant to auditable criteria; and
(iii) such activity is performed pursuant to available 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 attempt to monopolize the market for such services; and
(D) not preferentially treat its own telecommunications equipment or customer premises equipment, or that of its affiliate, over that of any other entity in establishing and publishing industry-wide standards or industry-wide generic requirements for, and in certification of, telecommunications equipment and customer premises equipment.
(5) Alternate dispute resolution
Within 90 days after February 8, 1996, the Commission shall prescribe a dispute resolution process 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 generic requirement for telecommunications equipment or customer premises equipment, pursuant to paragraph (4)(A)(v). The Commission shall not establish itself as a party to the dispute 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 conducting the activity. The Commission shall establish penalties to be assessed for delays caused by referral of frivolous disputes 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 telecommunications equipment or customer premises equipment available in the United States. Alternative sources shall be deemed to exist when such sources provide commercially viable alternatives that are providing such services to customers. The Commission shall act on any application for such a determination 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 regulations prescribed thereunder, the Commission shall have the same remedial authority as the Commission has in administering and enforcing the provisions of this subchapter with respect to any common carrier subject to this chapter.
(8) Definitions
For purposes of this subsection:
(A) The term "affiliate" shall have the same meaning as in
(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 Communications Research, Inc., by any otherwise unaffiliated Bell operating company of less than 1 percent of Bell Communications Research's total voting equity shall not be considered to be an equity interest under this paragraph.
(B) The term "generic requirement" means a description of acceptable product attributes for use by local exchange carriers in establishing product specifications for 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 deployed by telecommunications carriers in the United States as of February 8, 1996.
(D) The term "certification" means any technical process 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 organization" means an entity composed of industry members which has been accredited by an institution vested with the responsibility for standards accreditation by the industry.
(e) Bell operating company equipment procurement and sales
(1) Nondiscrimination standards for manufacturing
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 requirement for a separate subsidiary including manufacturing under this chapter—
(A) shall consider such equipment, produced or supplied by unrelated persons; and
(B) may not discriminate in favor of equipment produced or supplied by an affiliate or related person.
(2) Procurement standards
Each Bell operating company or any entity acting on its behalf shall make procurement decisions and award all supply contracts for equipment, services, 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 exchange carriers operating in the same area of interest. No participant in such planning shall be allowed to delay the introduction of new technology or the deployment of facilities to provide 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 company 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 upgrades.
(5) Protection of proprietary information
A Bell operating company and any entity it owns or otherwise controls shall protect the proprietary information submitted for procurement 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 section 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 Commission has in administering and enforcing the provisions of this subchapter with respect to any common carrier subject to this chapter.
(g) Additional rules and regulations
The Commission may prescribe such additional rules and regulations as the Commission determines are necessary to carry out the provisions of this section, and otherwise to prevent discrimination and cross-subsidization in a Bell operating company's dealings with its affiliate and with third parties.
(h) "Manufacturing" defined
As used in this section, the term "manufacturing" has the same meaning as such term has under the AT&T Consent Decree.
(June 19, 1934, ch. 652, title II, §273, as added
References in Text
The antitrust laws, referred to in subsec. (e)(3), are classified generally to
Section Referred to in Other Sections
This section is referred to in
§274. Electronic publishing by Bell operating companies
(a) Limitations
No Bell operating company or any affiliate may engage in the provision of electronic publishing that is disseminated by means of such Bell operating company's or any of its affiliates' basic telephone service, except that nothing in this section shall prohibit a separated affiliate or electronic publishing joint venture operated in accordance with this section from engaging in the provision of electronic publishing.
(b) Separated affiliate or electronic publishing joint venture requirements
A separated affiliate or electronic publishing 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 creditor 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 available, and (C) in a manner that is auditable in accordance with generally accepted auditing standards;
(4) value any assets that are transferred directly or indirectly from the Bell operating company to a separated affiliate or joint venture, and record any transactions by which such assets 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 company—
(A) have no officers, directors, and employees in common after the effective date of this section; and
(B) own no property in common;
(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 behalf of a separated affiliate;
(B) to perform the purchasing, installation, or maintenance of equipment on behalf of a separated affiliate, except 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 separated affiliate or joint venture and the Bell operating company for a period of 5 years subject to review by any lawful authority; and
(9) within 90 days of receiving a review described in paragraph (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 conjunction with a separated affiliate; and
(B) a Bell operating company shall not carry out any promotion, marketing, sales, or advertising for or in conjunction 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 related to the provision of electronic publishing for a separated 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 company may engage in nondiscriminatory teaming or business arrangements to engage in electronic publishing with any separated affiliate or with any other electronic publisher if (i) the Bell operating company only provides facilities, services, and basic telephone service information as authorized by this section, and (ii) the Bell operating company does not own such teaming or business arrangement.
(C) Electronic publishing joint ventures
A Bell operating company or affiliate may participate on a nonexclusive 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. Officers 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 Commission for good cause shown may authorize the Bell operating company or affiliate to have a larger equity interest, revenue share, or voting control but not to exceed 80 percent. A Bell operating company participating in an electronic publishing joint venture may provide promotion, marketing, sales, or advertising personnel and services to such joint venture.
(d) Bell operating company requirement
A Bell operating company under common ownership or control with a separated 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 practice of any Bell operating company, affiliate, or separated affiliate constitutes a violation of this section may file a complaint with the Commission or bring suit as provided in
(2) Cease and desist orders
In addition to the provisions 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 application 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 separated affiliate under this section shall file with the Commission annual reports in a form substantially equivalent to the Form 10–K required by regulations of the Securities and Exchange Commission.
(g) Effective dates
(1) Transition
Any electronic publishing service being offered to the public by a Bell operating company or affiliate on February 8, 1996, shall have one year from February 8, 1996, to comply with the requirements of this section.
(2) Sunset
The provisions of this section shall not apply to conduct occurring after 4 years after February 8, 1996.
(h) "Electronic publishing" defined
(1) In general
The term "electronic publishing" means the dissemination, provision, publication, or sale to an unaffiliated 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 materials; editorials, columns, or features; advertising; photos or images; archival or research material; legal notices or public records; scientific, educational, instructional, technical, professional, trade, or other literary materials; or other like or similar 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 gateway to an information service that does not involve the generation or alteration of the content of information, including data transmission, address translation, protocol conversion, billing management, introductory information content, and navigational systems that enable users to access 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 content 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 include advertising.
(J) Caller identification services.
(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 entertainment 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 telephone exchange area, except that such term does not include—
(A) a competitive wireline telephone exchange service provided in a telephone exchange area where another entity 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 Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 (
(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 includes corporations, partnerships, sole proprietorships, associations, and joint ventures.
(7) The term "inbound telemarketing" means the marketing of property, goods, or services by telephone to a customer 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 company that does not own or control a Bell operating company 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 company's or any of its affiliates' basic telephone service.
(10) The term "Bell operating company" has the meaning provided in
(June 19, 1934, ch. 652, title II, §274, as added
References in Text
The Securities Exchange Act of 1934, referred to in subsec. (i)(4), is act June 6, 1934, ch. 404,
Section Referred to in Other Sections
This section is referred to in
§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 services before the date which is 5 years after February 8, 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 engaged 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 February 8, 1996, except that this sentence shall not prohibit an exchange of customers for the customers of an unaffiliated alarm monitoring service entity.
(b) Nondiscrimination
An incumbent local exchange carrier (as defined in
(1) provide nonaffiliated entities, upon reasonable request, with the network services it provides to its own alarm monitoring operations, on nondiscriminatory terms and conditions; and
(2) not subsidize its alarm monitoring services either directly or indirectly from telephone exchange service operations.
(c) Expedited consideration of complaints
The Commission shall establish procedures for the receipt and review of complaints concerning violations of subsection (b) of this section 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 violation 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
(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 marketing such services on behalf of such local exchange carrier, or any other entity. Any regulations necessary to enforce this subsection shall be issued initially within 6 months after February 8, 1996.
(e) "Alarm monitoring service" defined
The term "alarm monitoring service" means a service that uses a device located 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 person or police, fire, rescue, security, or public safety personnel of such threat,
but does not include a service that uses a medical monitoring device attached to an individual for the automatic surveillance of an ongoing medical condition.
(June 19, 1934, ch. 652, title II, §275, as added
Section Referred to in Other Sections
This section is referred to in
§276. Provision of payphone service
(a) Nondiscrimination safeguards
After the effective date of the rules prescribed pursuant to subsection (b) of this section, any Bell operating company that provides payphone service—
(1) shall not subsidize its payphone service directly or indirectly from its telephone exchange service operations or its exchange 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 competition among payphone service providers and promote the widespread deployment of payphone services to the benefit of the general public, within 9 months after February 8, 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 February 8, 1996, and all intrastate and interstate payphone subsidies from basic exchange and exchange 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 provisions of paragraphs (1) and (2) of subsection (a) of this section, which safeguards shall, at a minimum, include the nonstructural safeguards equal to those adopted in the Computer Inquiry-III (CC Docket No. 90–623) proceeding;
(D) provide for Bell operating company payphone service providers to have the same right that independent payphone providers have to negotiate with the location provider on the location provider's selecting and contracting 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 pursuant 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 location provider's selecting and contracting with, and, subject to the terms of any agreement with the location provider, to select and contract with, the carriers that carry intraLATA calls from their payphones.
(2) Public interest telephones
In the rulemaking conducted pursuant to paragraph (1), the Commission shall determine 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 affect any existing contracts between location providers and payphone service providers or interLATA or intraLATA carriers that are in force and effect as of February 8, 1996.
(c) State preemption
To the extent that any State requirements are inconsistent with the Commission's regulations, the Commission's regulations on such matters shall preempt such State requirements.
(d) "Payphone service" defined
As used in this section, the term "payphone service" means the provision of public or semi-public pay telephones, the provision of inmate telephone service in correctional institutions, and any ancillary services.
(June 19, 1934, ch. 652, title II, §276, as added
SUBCHAPTER III—SPECIAL PROVISIONS RELATING TO RADIO
Subchapter Referred to in Other Sections
This subchapter is referred to in
Part I—General Provisions
§301. License for radio communication or transmission of energy
It is the purpose of this chapter, 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 periods of the license. No person shall use or operate any apparatus 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 possession 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 signals 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
(June 19, 1934, ch. 652, title III, §301,
References in Text
This chapter, referred to in text, was in the original "this Act", meaning act June 19, 1934, ch. 652,
Amendments
1982—
Section Referred to in Other Sections
This section is referred to in
§302. Repealed. June 5, 1936, ch. 511, §1, 49 Stat. 1475
Section, act June 19, 1934, ch. 652, title III, §302,
§302a. Devices which interfere with radio reception
(a) Regulations
The Commission may, consistent with the public interest, convenience, and necessity, make reasonable regulations (1) governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference 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.
(b) Restrictions
No person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.
(c) Exceptions
The provisions of this section shall not be applicable to carriers 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 manufacture, assembly, or installation of devices or home electronic equipment and systems for its own use by a public utility engaged 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 equipment and systems for use by the Government of the United States or any agency thereof shall be developed, procured, or otherwise acquired, including offshore procurement, under United States Government 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) Cellular telecommunications receivers
(1) Within 180 days after October 28, 1992, the Commission shall prescribe and make effective regulations 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 transmissions in such frequencies, or
(C) being equipped with decoders that convert digital cellular 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 capabilities described in subparagraph (A), (B), or (C) of paragraph (1), as such capabilities are defined in such regulations, shall be manufactured in the United States or imported for use in the United States.
(e) Delegation of equipment testing and certification to private laboratories
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 certification.
(June 19, 1934, ch. 652, title III, §302, as added
Amendments
1996—Subsec. (e).
1992—Subsec. (d).
1982—Subsec. (a).
Subsec. (b).
Subsec. (c).
Effect on Other Laws
Section 403(c) of
Minimum Performance Standards; Home Electronic Equipment and Systems Manufactured Before September 13, 1982
Section 108(b) of
Section Referred to in Other Sections
This section is referred to in
§303. Powers and duties of Commission
Except as otherwise provided in this chapter, 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 stations, and assign frequencies for each individual station and determine 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 chapter: Provided, however, That changes in the frequencies, authorized power, or in the times of operation of any station, shall not be made without the consent of the station licensee unless the Commission shall determine that such changes will promote public convenience or interest or will serve public necessity, or the provisions of this chapter 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 requiring 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 rolling stock, or to modify such regulations in its discretion;
(l)(1) Have authority to prescribe the qualifications of station operators, to classify them according to the duties to be performed, to fix the forms of such licenses, and to issue them to persons who are found to be qualified by the Commission and who otherwise are legally eligible for employment in the United States, except 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 certificates; 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 individual to whom a radio station is licensed under the provisions of this chapter may be issued an operator's license to operate that station.
(3) In addition to amateur operator licenses which the Commission may issue to aliens pursuant to paragraph (2) of this subsection, and notwithstanding
(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
(B) has failed to carry out a lawful order of the master or person lawfully in charge of the ship or aircraft on which he is employed; or
(C) has willfully damaged or permitted radio apparatus or installations to be damaged; or
(D) has transmitted superfluous radio communications or signals or communications containing profane or obscene words, language, 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 another 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 licensee who may make written application to the Commission at any time within said fifteen days for a 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 conditions 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 Commission by rule has authorized to operate without a license under
(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 to the jurisdiction of the United States and for the proper enforcement of this chapter;
(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 owner in any case in which the owner is not the permittee or licensee, 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 possibility that it may constitute a menace to air navigation.
(r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter, 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 receive 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
(u) Require that apparatus designed to receive television pictures broadcast simultaneously with sound be equipped with built-in decoder circuitry designed to display closed-captioned television transmissions when such apparatus is manufactured in the United States or imported for use in the United States, and its television picture screen is 13 inches or greater in size.
(v) Have exclusive jurisdiction to regulate the provision of direct-to-home satellite services. As used in this subsection, the term "direct-to-home satellite services" means the distribution or broadcasting of programming or services by satellite directly to the subscriber's premises without the use of ground receiving or distribution equipment, except at the subscriber's premises or in the uplink process to the satellite.
(w) Omitted.
(x) Require, in the case of an apparatus designed to receive television signals that are shipped in interstate commerce or manufactured in the United States and that have a picture screen 13 inches or greater in size (measured diagonally), that such apparatus be equipped with a feature designed to enable viewers to block display of all programs with a common rating, except as otherwise permitted by regulations pursuant to
(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 communications services and systems, or technology development; and
(C) such use would not result in harmful interference among users.
(June 19, 1934, ch. 652, title III, §303,
Codification
Enactment of subsec. (w) by
In subsec. (l)(3), "subchapter II of
Amendments
1997—Subsec. (y).
1996—Subsec. (f).
Subsec. (v).
Subsec. (w).
"(1) on the basis of recommendations from an advisory committee established by the Commission in accordance with section 551(b)(2) of the Telecommunications Act of 1996, guidelines and recommended procedures for the identification and rating of video programming that contains sexual, violent, or other indecent material about which parents should be informed before it is displayed to children: Provided, That nothing in this paragraph shall be construed to authorize any rating of video programming on the basis of its political or religious 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 programming that they have determined is inappropriate for their children."
See Codification note above and Effective Date of 1996 Amendment note below.
Subsec. (x).
1992—Subsec. (q).
1990—Subsec. (l)(3).
Subsec. (u).
1982—Subsec. (l)(1).
Subsec. (m)(1)(A).
Subsec. (n).
Subsec. (t).
1974—Subsec. (l)(2).
Subsec. (l)(3).
1971—Subsec. (l)(3).
1965—Subsec. (q).
1964—Subsec. (l).
1962—Subsec. (l).
Subsec. (s).
1958—Subsec. (l).
1937—Subsecs. (m), (n). Act May 20, 1937, §§5, 6(a), amended subsecs. (m) and (n) generally.
Subsec. (r). Act May 20, 1937, §6(b), added subsec. (r).
Effective Date of 1996 Amendment
Section 551(e) of
"(1)
"(A) established voluntary rules for rating video programming that contains sexual, violent, or other indecent material about which parents should be informed before it is displayed to children, and such rules are acceptable to the Commission; and
"(B) agreed voluntarily to broadcast signals that contain ratings of such programming.
"(2)
Effective Date of 1992 Amendment
Section 210(c) of
Effective Date of 1990 Amendment
Section 5 of
Regulations
Section 6 of
Restrictions on Over-the-Air Reception Devices
Section 207 of
Parental Choice in Television Programming
Section 551(a) of
"(1) Television influences children's perception of the values and behavior that are common and acceptable in society.
"(2) Television station operators, cable television system operators, and video programmers should follow practices in connection with video programming that take into consideration that television broadcast and cable programming has established a uniquely pervasive presence in the lives of American children.
"(3) The average American child is exposed to 25 hours of television each week and some children are exposed to as much as 11 hours of television a day.
"(4) Studies have shown that children exposed to violent video programming at a young age have a higher tendency for violent and aggressive behavior later in life than children not so exposed, and that children exposed to violent video programming are prone to assume that acts of violence are acceptable behavior.
"(5) Children in the United States are, on average, exposed to an estimated 8,000 murders and 100,000 acts of violence on television by the time the child completes elementary school.
"(6) Studies indicate that children are affected by the pervasiveness and casual treatment of sexual material on television, eroding the ability of parents to develop responsible attitudes and behavior in their children.
"(7) Parents express grave concern over violent and sexual video programming and strongly support technology that would give them greater control to block video programming in the home that they consider harmful to their children.
"(8) There is a compelling governmental interest in empowering parents to limit the negative influences of video programming that is harmful to children.
"(9) Providing parents with timely information about the nature of upcoming video programming and with the technological tools that allow them easily to block violent, sexual, or other programming that they believe harmful to their children is a nonintrusive and narrowly tailored means of achieving that compelling governmental interest."
Advisory Committee Requirements
Section 551(b)(2) of
"(A) ensure that such committee is composed of parents, television broadcasters, television programming producers, cable operators, appropriate public interest groups, and other interested individuals from the private sector and is fairly balanced in terms of political affiliation, the points of view represented, and the functions to be performed by the committee;
"(B) provide to the committee such staff and resources as may be necessary to permit it to perform its functions efficiently and promptly; and
"(C) require the committee to submit a final report of its recommendations within one year after the date of the appointment of the initial members."
Technology Fund
Section 552 of
"(1) establish a technology fund to encourage television and electronics equipment manufacturers to facilitate the development of technology which would empower parents to block programming they deem inappropriate for their children and to encourage the availability thereof to low income parents;
"(2) report to the viewing public on the status of the development of affordable, easy to use blocking technology; and
"(3) establish and promote effective procedures, standards, systems, advisories, or other mechanisms for ensuring that users have easy and complete access to the information necessary to effectively utilize blocking technology and to encourage the availability thereof to low income parents."
AM Radio Improvement Standard
Section 214 of
"(1) within 60 days after the date of enactment of this Act [Oct. 27, 1992], initiate a rulemaking to adopt a single AM radio stereophonic transmitting equipment standard that specifies the composition of the transmitted stereophonic signal; and
"(2) within one year after such date of enactment, adopt such standard."
Broadcasting of Indecent Programming; FCC Regulations
"(1) between 6 a.m. and 10 p.m. on any day by any public radio station or public television station that goes off the air at or before 12 midnight; and
"(2) between 6 a.m. and 12 midnight on any day for any radio or television broadcasting station not described in paragraph (1).
The regulations required under this subsection shall be promulgated in accordance with
Congressional Findings Regarding Access by Hearing-Impaired People to Television Medium
Section 2 of
"(1) to the fullest extent made possible by technology, deaf and hearing-impaired people should have equal access to the television medium;
"(2) closed-captioned television transmissions have made it possible for thousands of deaf and hearing-impaired people to gain access to the television medium, thus significantly improving the quality of their lives;
"(3) closed-captioned television will provide access to information, entertainment, and a greater understanding of our Nation and the world to over 24,000,000 people in the United States who are deaf or hearing-impaired;
"(4) closed-captioned television will provide benefits for the nearly 38 percent of older Americans who have some loss of hearing;
"(5) closed-captioned television can assist both hearing and hearing-impaired children with reading and other learning skills, and improve literacy skills among adults;
"(6) closed-captioned television can assist those among our Nation's large immigrant population who are learning English as a second language with language comprehension;
"(7) currently, a consumer must buy a TeleCaption decoder and connect the decoder to a television set in order to display the closed-captioned television transmissions;
"(8) technology is now available to enable that closed-caption decoding capability to be built into new television sets during manufacture at a nominal cost by 1991; and
"(9) the availability of decoder-equipped television sets will significantly increase the audience that can be served by closed-captioned television, and such increased market will be an incentive to the television medium to provide more captioned programming."
Direction on Use of Funds Regarding Spectrum Allocation and Assignments for Public Safety Purposes
"(a) Funds authorized to be appropriated under section 2 of this Act [amending
"(b) Pending adoption of a plan, the Commission, while making assignments and allocations, shall duly recognize the needs of State and local public safety authorities."
Cross References
Radiotelegraph operators licensed as ship's officers, see
Section Referred to in Other Sections
This section is referred to in
§303a. Standards for children's television programming
(a) Establishment
The Commission shall, within 30 days after October 18, 1990, initiate a rulemaking proceeding to prescribe standards applicable to commercial television broadcast licensees with respect to the time devoted to commercial matter in conjunction with children's television programming. The Commission shall, within 180 days after October 18, 1990, complete the rulemaking proceeding and prescribe final standards that meet the requirements of subsection (b) of this section.
(b) Advertising duration limitations
Except as provided in subsection (c) of this section, the standards prescribed under subsection (a) of this section shall include the requirement that each commercial television broadcast licensee shall limit the duration of advertising in children's television programming to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays.
(c) Review of advertising duration limitations; modification
After January 1, 1993, the Commission—
(1) may review and evaluate the advertising duration limitations required by subsection (b) of this section; and
(2) may, after notice and public comment and a demonstration of the need for modification of such limitations, modify such limitations in accordance with the public interest.
(d) "Commercial television broadcast licensee" defined
As used in this section, the term "commercial television broadcast licensee" includes a cable operator, as defined in
(
Codification
Section was enacted as part of the Children's Television Act of 1990, and not as part of the Communications Act of 1934 which comprises this chapter.
Congressional Findings
Section 101 of title I of
"(1) it has been clearly demonstrated that television can assist children to learn important information, skills, values, and behavior, while entertaining them and exciting their curiosity to learn about the world around them;
"(2) as part of their obligation to serve the public interest, television station operators and licensees should provide programming that serves the special needs of children;
"(3) the financial support of advertisers assists in the provision of programming to children;
"(4) special safeguards are appropriate to protect children from overcommercialization on television;
"(5) television station operators and licensees should follow practices in connection with children's television programming and advertising that take into consideration the characteristics of this child audience; and
"(6) it is therefore necessary that the Federal Communications Commission (hereinafter referred to as the 'Commission') take the actions required by this title [enacting
Section Referred to in Other Sections
This section is referred to in
§303b. Consideration of children's television service in broadcast license renewal
(a) After the standards required by
(1) has complied with such standards; and
(2) has served the educational and informational needs of children through the licensee's overall programming, including programming specifically designed to serve such needs.
(b) In addition to consideration of the licensee's programming as required under subsection (a) of this section, the Commission may consider—
(1) any special nonbroadcast efforts by the licensee which enhance the educational and informational value of such programming to children; and
(2) any special efforts by the licensee to produce or support programming broadcast by another station in the licensee's marketplace which is specifically designed to serve the educational and informational needs of children.
(
Codification
Section was enacted as part of the Children's Television Act of 1990, and not as part of the Communications Act of 1934 which comprises this chapter.
Amendments
1994—Subsec. (a).
1992—Subsec. (a).
§303c. Television program improvement
(a) Short title
This section may be cited as the "Television Program Improvement Act of 1990".
(b) Definitions
For purposes of this section—
(1) the term "antitrust laws" has the meaning given it in subsection (a) of
(2) the term "person in the television industry" means a television network, any entity which produces programming (including theatrical motion pictures) for telecasting or telecasts programming, the National Cable Television Association, the Association of Independent Television Stations, Incorporated, the National Association of Broadcasters, the Motion Picture Association of America, the Community Antenna Television Association, and each of the networks' affiliate organizations, and shall include any individual acting on behalf of such person; and
(3) the term "telecast" means—
(A) to broadcast by a television broadcast station; or
(B) to transmit by a cable television system or a satellite television distribution service.
(c) Exemption
The antitrust laws shall not apply to any joint discussion, consideration, review, action, or agreement by or among persons in the television industry for the purpose of, and limited to, developing and disseminating voluntary guidelines designed to alleviate the negative impact of violence in telecast material.
(d) Limitations
(1) The exemption provided in subsection (c) of this section shall not apply to any joint discussion, consideration, review, action, or agreement which results in a boycott of any person.
(2) The exemption provided in subsection (c) of this section shall apply only to any joint discussion, consideration, review, action, or agreement engaged in only during the 3-year period beginning on December 1, 1990.
(
Codification
Section was enacted as part of the Television Program Improvement Act of 1990 and also as part of the Judicial Improvements Act of 1990, and not as part of the Communications Act of 1934 which comprises this chapter.
§304. Waiver by license of claims to particular frequency or of electromagnetic spectrum
No station license shall be granted by the Commission until the applicant therefor 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.
(June 19, 1934, ch. 652, title III, §304,
Amendments
1992—
1982—
Section Referred to in Other Sections
This section is referred to in
§305. Government owned stations
(a) Frequencies; compliance with regulations; stations on vessels
Radio stations belonging to and operated by the United States shall not be subject to the provisions of
(b) Call letters
All stations owned and operated by the United States, except mobile stations of the Army of the United States, and all other stations on land and sea, shall have special call letters designated by the Commission.
(c) Stations operated by foreign governments
The provisions of
(June 19, 1934, ch. 652, title III, §305,
Codification
In subsec. (c), "subchapter II of
Amendments
1996—Subsecs. (b) to (d).
1981—Subsec. (b).
1962—Subsec. (d).
Transfer of Functions
For transfer of functions of United States Shipping Board Bureau and United States Shipping Board Merchant Fleet Corporation, see Ex. Ord. No. 6166, set out under
REORGANIZATION PLAN NO. 1 OF 1970
Eff. Apr. 20, 1970, 35 F.R. 6421, 84 Stat. 2083
Prepared by the President and Transmitted to the Senate and the House of Representatives in Congress Assembled, February 9, 1970, Pursuant to the Provisions of
OFFICE OF TELECOMMUNICATIONS POLICY
Section 1. Transfer of Functions
The functions relating to assigning frequencies to radio stations belonging to and operated by the United States, or to classes thereof, conferred upon the President by the provisions of section 305(a) of the Communications Act of 1934,
Sec. 2. Establishment of Office
There is hereby established in the Executive Office of the President the Office of Telecommunications Policy, hereinafter referred to as the Office.
Sec. 3. Director and Deputy
(a) There shall be at the head of the Office the Director of the Office of Telecommunications Policy, hereinafter referred to as the Director. The Director shall be appointed by the President by and with the advice and consent of the Senate and shall be compensated at the rate now or hereafter provided for Level III of the Executive Schedule Pay Rates (
(b) There shall be in the Office a Deputy Director of the Office of Telecommunications Policy who shall be appointed by the President by and with the advice and consent of the Senate and shall be compensated at the rate now or hereafter provided for Level IV of the Executive Schedule Pay Rates (
(c) No person shall while holding office as Director or Deputy Director engage in any other business, vocation, or employment.
Sec. 4. Performance of Functions of Director
(a) The Director may appoint employees necessary for the work of the Office under the classified civil service and fix their compensation in accordance with the classification laws.
(b) The Director may from time to time make such provisions as he shall deem appropriate authorizing the performance of any function transferred to him hereunder by any other officer, or by any organizational entity or employee, of the Office.
Sec. 5. Abolition of Office
That office of Assistant Director of the Office of Emergency Preparedness held by the Director of Telecommunications Management under Executive Order No. 10995 of February 16, 1962, as amended, is abolished. The Director of the Office of Emergency Preparedness shall make such provisions as he may deem to be necessary with respect to winding up any outstanding affairs of the office abolished by the foregoing provisions of this section.
Sec. 6. Incidental Transfers
(a) So much of the personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, held, or used by, or available or to be made available to, the Office of Emergency Preparedness in connection with functions affected by the provisions of this reorganization plan as the Director of the Bureau of the Budget shall determine shall be transferred to the Office of Telecommunications Policy at such time or times as he shall direct.
(b) Such further measures and dispositions as the Director of the Bureau of the Budget shall deem to be necessary in order to effectuate the transfers provided for in subsection (a) of this section shall be carried out in such manner as he shall direct and by such agencies as he shall designate.
Sec. 7. Interim Director
The President may authorize any person who immediately prior to the effective date of this reorganization plan holds a position in the Executive Office of the President to act as Director of the Office of Telecommunications Policy until the office of Director is for the first time filled pursuant to the provisions of section 3 of this reorganization plan or by recess appointment, as the case may be. The President may authorize any person who serves in an acting capacity under the foregoing provisions of this section to receive the compensation attached to the office of Director. Such compensation, if authorized, shall be in lieu of, but not in addition to, other compensation from the United States to which such person may be entitled.
[The Office of Telecommunications Policy was abolished and its functions transferred to the President and the Secretary of Commerce by secs. 3 and 5 of Reorg. Plan No. 1 of 1977, set out in the Appendix to Title 5, Government Organization and Employees.]
Message of the President
To the Congress of the United States:
We live in a time when the technology of telecommunications is undergoing rapid change which will dramatically affect the whole of our society. It has long been recognized that the executive branch of the Federal government should be better equipped to deal with the issues which arise from telecommunications growth. As the largest single user of the nation's telecommunications facilities, the Federal government must also manage its internal communications operations in the most effective manner possible.
Accordingly, I am today transmitting to the Congress Reorganization Plan No. 1 of 1970, prepared in accordance with
That plan would establish a new Office of Telecommunications Policy in the Executive Office of the President. The new unit would be headed by a Director and a Deputy Director who would be appointed by the President with the advice and consent of the Senate. The existing office held by the Director of Telecommunications Management in the Office of Emergency Preparedness would be abolished.
In addition to the functions which are transferred to it by the reorganization plan, the new Office would perform certain other duties which I intend to assign to it by Executive order as soon as the reorganization plan takes effect. That order would delegate to the new Office essentially those functions which are now assigned to the Director of Telecommunications Management. The Office of Telecommunications Policy would be assisted in its research and analysis responsibilities by the agencies and departments of the Executive Branch including another new office, located in the Department of Commerce.
The new Office of Telecommunications Policy would play three essential roles:
1. It would serve as the President's principal adviser on telecommunications policy, helping to formulate government policies concerning a wide range of domestic and international telecommunications issues and helping to develop plans and programs which take full advantage of the nation's technological capabilities. The speed of economic and technological advance in our time means that new questions concerning communications are constantly arising, questions on which the government must be well informed and well advised. The new Office will enable the President and all government officials to share more fully in the experience, the insights, and the forecasts of government and non-government experts.
2. The Office of Telecommunications Policy would help formulate policies and coordinate operations for the Federal government's own vast communications systems. It would, for example, set guidelines for the various departments and agencies concerning their communications equipment and services. It would regularly review the ability of government communications systems to meet the security needs of the nation and to perform effectively in time of emergency. The Office would direct the assignment of those portions of the radio spectrum which are reserved for government use, carry out responsibilities conferred on the President by the Communications Satellite Act, advise State and local governments, and provide policy direction for the National Communications System.
3. Finally, the new Office would enable the executive branch to speak with a clearer vote and to act as a more effective partner in discussions of communications policy with both the Congress and the Federal Communications Commission. This action would take away none of the prerogatives or functions assigned to the Federal Communications Commission by the Congress. It is my hope, however, that the new Office and the Federal Communications Commission would cooperate in achieving certain reforms in telecommunications policy, especially in their procedures for allocating portions of the radio spectrum for government and civilian use. Our current procedures must be more flexible if they are to deal adequately with problems such as the worsening spectrum shortage.
Each reorganization included in the plan which accompanies this message is necessary to accomplish one or more of the purposes set forth in
The reorganization provided for in this plan make necessary the appointment and compensation of new officers, as specified in sections 3(a) and 3(b) of the plan. The rates of compensation fixed for these officers are comparable to those fixed for other officers in the executive branch who have similar responsibilities.
This plan should result in the more efficient operation of the government. It is not practical, however, to itemize or aggregate the exact expenditure reductions which will result from this action.
The public interest requires that government policies concerning telecommunications be formulated with as much sophistication and vision as possible. This reorganization plan—and the executive order which would follow it—are necessary instruments if the government is to respond adequately to the challenges and opportunities presented by the rapid pace of change in communications. I urge that the Congress allow this plan to become effective so that these necessary reforms can be accomplished.
Richard Nixon.
Executive Order No. 10995
Ex. Ord. No. 10995, eff. Feb. 16, 1962, 27 F.R. 1519, as amended by Ex. Ord. No. 11084, eff. Feb. 18, 1963, 28 F.R. 1531, which related to the assignment of telecommunications management functions, was revoked by Ex. Ord. No. 11556, eff. Sept. 14, 1970, 35 F.R. 14193, formerly set out below.
Executive Order No. 11556
Ex. Ord. No. 11556, Sept. 4, 1970, 35 F.R. 14193, as amended by Ex. Ord. No. 11921, June 11, 1976, 41 F.R. 2494, which related to the assignment of telecommunication functions, was revoked by Ex. Ord. No. 12046, Mar. 27, 1978, 43 F.R. 13349, set out below.
Ex. Ord. No. 12046. Transfer of Telecommunications Functions
Ex. Ord. No. 12046, Mar. 27, 1978, 43 F.R. 13349, as amended by Ex. Ord. No. 12148, July 20, 1979, 44 F.R. 43239; Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471, provided:
By virtue of the authority vested in me by the Constitution and laws of the United States of America, including Section 7 of Reorganization Plan No. 1 of 1977 (42 FR 56101 (October 21, 1977)) [set out in the Appendix to Title 5, Government Organization and Employees], the authority and control vested in the President by Section 2 of Executive Order No. 11556, as amended. Section 202 of the Budget and Accounting Procedures Act of 1950 (
SECTION 1
Reorganization Plan
1–1. Implementation of Reorganization Plan
1–101. The transfer of all the functions of the Office of Telecommunications Policy and of its Director, as provided by Section 5B of Reorganization Plan No. 1 of 1977 (42 FR 56101), is hereby effective.
1–102. The abolition of the Office of Telecommunications Policy, as provided by Section 3C of Reorganization Plan No. 1 of 1977, is hereby effective.
1–103. The establishment of an Assistant Secretary for Communications and Information, Department of Commerce, as provided by Section 4 of Reorganization Plan No. 1 of 1977, is hereby effective.
1–2. Telecommunications Function
1–201. Prior to the effective date of Reorganization Plan No. 1 of 1977, the Office of Telecommunications Policy and its Director had the functions set forth or referenced by: (1) Section 1 of Reorganization Plan No. 1 of 1970 (5 U.S.C. App.), (2) Executive Order No. 11556 of September 4, 1970, as amended (
1–202. So much of those functions which relate to the preparation of Presidential telecommunications policy options or to the disposition of appeals from assignments of radio frequencies to stations of the United States Government were transferred to the President. These functions may be delegated within the Executive Office of the President and the delegations are set forth in this Order at Sections 3–1 through 4–3.
1–203. Those telecommunications functions which were not transferred to the President were transferred to the Secretary of Commerce. Functions transferred to the Secretary are set forth in this Order at Sections 2–1 through 2–5.
SECTION 2
Functions Transferred to Commerce
2–1. Radio Frequencies
2–101. The authority of the President to assign frequencies to radio stations or to classes of radio stations belonging to and operated by the United States, including the authority to amend, modify, or revoke such assignments, was transferred to the Secretary of Commerce.
2–102. This authority, which was originally vested in the President by Section 305(a) of the Communications Act of 1934, as amended (
2–103. The authority to assign frequencies to radio stations is subject to the authority to dispose of appeals from frequency assignments as set forth in Section 3–2 of this Order.
2–2. Construction of Radio Stations
2–201. The authority to authorize a foreign government to construct and operate a radio station at the seat of government of the United States was transferred to the Secretary of Commerce. Authorization for the construction and operation of a radio station pursuant to this authority and the assignment of a frequency for its use can be made only upon recommendation of the Secretary of State and after consultation with the Attorney General and the Chairman of the Federal Communications Commission.
2–202. This authority, which was originally vested in the President by Section 305(d) of the Communications Act of 1934, as amended (
2–3. Communications Satellite System
2–301. Certain functions relating to the communications satellite system were transferred to the Secretary of Commerce. Those functions were delegated or assigned to the Director of the Office of Telecommunications Policy by Executive Order No. 11191, as amended by Executive Order No. 11556. The functions include authority vested in the President by Section 201(a) of the Communications Satellite Act of 1962 (
(a) Aid in the planning and development of the commercial communications satellite system and aid in the execution of a national program for the operation of such a system.
(b) Conduct a continuous review of all phases of the development and operation of such system, including the activities of the Corporation.
(c) Coordinate, in consultation with the Secretary of State, the activities of governmental agencies with responsibilities in the field of telecommunications, so as to insure that there is full and effective compliance at all times with the policies set forth in the Act [
(d) Make recommendations to the President and others as appropriate, with respect to all steps necessary to insure the availability and appropriate utilization of the communications satellite system for general government purposes in consonance with Section 201(a)(6) of the Act [
(e) Help attain coordinated and efficient use of the electromagnetic spectrum and the technical compatibility of the communications satellite system with existing communications facilities both in the United States and abroad.
(f) Assist in the preparation of Presidential action documents for consideration by the President as may be appropriate under Section 201(a) of the Act, make necessary recommendations to the President in connection therewith, and keep the President currently informed with respect to the carrying out of the Act.
(g) Serve as the chief point of liaison between the President and the Corporation.
(h) The Secretary of Commerce shall timely submit to the President each year the report (including evaluations and recommendations) provided for in Section 404(a) of the Act (
(i) The Secretary of Commerce shall coordinate the performance of these functions with the Secretary of State. The Corporation and other concerned Executive agencies shall provide the Secretary of Commerce with such assistance, documents, and other cooperation as will enable the Secretary to carry out these functions.
2–4. Other Telecommunications Functions
Certain functions assigned, subject to the authority and control of the President to the Director of the Office of Telecommunications Policy by Section 2 of Executive Order No. 11556 were transferred to the Secretary of Commerce. These functions, subject to the authority and control of the President, are set forth in the following subsections.
2–401. The Secretary of Commerce shall serve as the President's principal adviser on telecommunications policies pertaining to the Nation's economic and technological advancement and to the regulation of the telecommunications industry.
2–402. The Secretary of Commerce shall advise the Director of the Office of Management and Budget on the development of policies relating to the procurement and management of Federal telecommunications systems.
2–403. The Secretary of Commerce shall conduct studies and evaluations concerning telecommunications research and development, and concerning the initiation, improvement, expansion, testing, operation, and use of Federal telecommunications systems. The Secretary shall advise appropriate agencies, including the Office of Management and Budget, of the recommendations which result from such studies and evaluations.
2–404. The Secretary of Commerce shall develop and set forth, in coordination with the Secretary of State and other interested agencies, plans, policies, and programs which relate to international telecommunications issues, conferences, and negotiations. The Secretary of Commerce shall coordinate economic, technical, operational and related preparations for United States participation in international telecommunications conferences and negotiations. The Secretary shall provide advice and assistance to the Secretary of State on international telecommunications policies to strengthen the position and serve the best interests of the United States, in support of the Secretary of State's responsibility for the conduct of foreign affairs.
2–405. The Secretary of Commerce shall provide for the coordination of the telecommunications activities of the Executive Branch, and shall assist in the formulation of policies and standards for those activities, including but not limited to considerations of interoperability, privacy, security, spectrum use and emergency readiness.
2–406. The Secretary of Commerce shall develop and set forth telecommunications policies pertaining to the Nation's economic and technological advancement and to the regulation of the telecommunications industry.
2–407. The Secretary of Commerce shall ensure that the Executive Branch views on telecommunications matters are effectively presented to the Federal Communications Commission and, in coordination with the Director of the Office of Management and Budget, to the Congress.
2–408. The Secretary of Commerce shall establish policies concerning spectrum assignments and use by radio stations belonging to and operated by the United States. Agencies shall consult with the Secretary of Commerce to ensure that their conduct of telecommunications activities is consistent with those policies.
2–409. The Secretary of Commerce shall develop, in cooperation with the Federal Communications Commission, a comprehensive long-range plan for improved management of all electromagnetic spectrum resources.
2–410. The Secretary of Commerce shall conduct studies and make recommendations concerning the impact of the convergence of computer and communications technology.
2–411. The Secretary of Commerce shall coordinate Federal telecommunications assistance to State and local governments, except as otherwise provided by Executive Order No. 12472 [set out as a note under
2–412. The Secretary of Commerce shall conduct and coordinate economic and technical analyses of telecommunications policies, activities, and opportunities in support of assigned responsibilities.
2–413. The Secretary of Commerce shall contract for studies and reports related to any aspect of assigned responsibilities.
2–414. [Revoked. Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471.]
2–5. Consultation Responsibilities
2–501. The authority to establish coordinating committees, as assigned to the Director of the Office of Telecommunications Policy by Section 10 of Executive Order No. 11556, was transferred to the Secretary of Commerce.
2–502. As permitted by law, the Secretary of Commerce shall establish such interagency committees and working groups composed of representatives of interested agencies, and shall consult with such departments and agencies as may be necessary for the most effective performance of his functions. To the extent he deems it necessary to continue the Interdepartment Radio Advisory Committee, that Committee shall serve in an advisory capacity to the Secretary. As permitted by law, the Secretary also shall establish one or more telecommunications advisory committees composed of experts in the telecommunications area outside the Government.
SECTION 3
Functions Assigned to the Office of Management and Budget
3–1. Telecommunications Procurement and Management
3–101. The responsibility for serving as the President's principal adviser on procurement and management of Federal telecommunications systems and the responsibility for developing and establishing policies for procurement and management of such systems, which responsibilities were assigned to the Director of the Office of Telecommunications Policy subject to the authority and control of the President by Section 2(b) of Executive Order No. 11556, were transferred to the President.
3–102. These functions are delegated to the Director of the Office of Management and Budget.
3–2. Radio Frequency Appeals
3–201. The authority to make final disposition of appeals from frequency assignments by the Secretary of Commerce for radio stations belonging to and operated by the United States, which authority was vested in the President by Section 305(a) of the Communications Act of 1934 (
3–202. This function is delegated to the Director of the Office of Management and Budget.
SECTION 4
Functions Assigned to the National Security Council and the Office of Science and Technology Policy
4–1. Emergency Functions
4–101. The war power functions of the President under Section 606 of the Communications Act of 1934, as amended (
4–102. [Revoked. Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471.]
4–103. [Revoked. Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471.]
4–2. National Communications System
4–201. The responsibility for policy direction of the development and operation of a National Communications System, which was assigned to the Director of the Office of Telecommunications Policy by the Presidential Memorandum of August 21, 1963, as amended by Executive Order No. 11556, was transferred to the President.
4–202. [Revoked. Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471.]
4–3. Planning Functions
4–301. The function of coordinating the development of policy, plans, programs, and standards for the mobilization and use of the Nation's telecommunications resources in any emergency, which function was assigned to the Director of the Office of Telecommunications Policy subject to the authority and control of the President by Section 2(h) of the Executive Order No. 11556, was transferred to the President.
4–302. [Revoked. Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471.]
SECTION 5
Related Telecommunications Functions
5–1. The Department of Commerce
5–101. The Secretary of Commerce shall continue to perform the following functions previously assigned by Section 13 of Executive Order No. 11556:
(a) Perform analysis, engineering, and administrative functions, including the maintenance of necessary files and data bases, as necessary in the performance of assigned responsibilities for the management of electromagnetic spectrum.
(b) Conduct research and analysis of electromagnetic propagation, radio systems characteristics, and operating techniques affecting the utilization of the electromagnetic spectrum in coordination with specialized, related research and analysis performed by other Federal agencies in their areas of responsibility.
(c) Conduct research and analysis in the general field of telecommunications sciences in support of assigned functions and in support of other Government agencies.
5–102. The Secretary of Commerce shall participate, as appropriate, in evaluating the capability of telecommunications resources, in recommending remedial actions, and in developing policy options.
5–2. Department of State
5–201. With respect to telecommunications, the Secretary of State shall exercise primary authority for the conduct of foreign policy, including the determination of United States positions and the conduct of United States participation in negotiations with foreign governments and international bodies. In exercising this responsibility the Secretary of State shall coordinate with other agencies as appropriate, and, in particular, shall give full consideration to the Federal Communications Commission's regulatory and policy responsibility in this area.
5–202. The Secretary of State shall continue to perform the following functions previously assigned by Executive Order No. 11191, as amended:
(a) Exercise the supervision provided for in Section 201(a)(4) of the Communications Satellite Act of 1962, as amended (
(b) Coordinate, in accordance with the applicable interagency agreements, the performance of these functions with the Secretary of Commerce, the Federal Communications Commission, other concerned Executive agencies, and the Communications Satellite Corporation (see
5–3. Federal Emergency Management Agency [Revoked. Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471.]
SECTION 6
General Provisions
6–1. Transfer Provisions
6–101. [Revoked. Ex. Ord. No. 12472, Apr. 3, 1984, 49 F.R. 13471.]
6–102. The primary responsibility for performing all administrative support and service functions that are related to functions transferred from the Office of Telecommunications Policy and its Director to the President, including those functions delegated or assigned within the Executive Office of the President, are transferred to the Office of Administration. The Domestic Policy Staff shall perform such functions related to the preparation of Presidential telecommunications policy options as the President may from time to time direct.
6–103. The records, property, personnel, and unexpended balances of appropriations, available or to be made available, which relate to the functions transferred, assigned, or delegated as provided in this Order are hereby transferred as appropriate.
6–104. The Director of the Office of Management and Budget shall make such determinations, issue such orders, and take all actions necessary or appropriate to effectuate the transfers or reassignments provided in this Order, including the transfer of funds, records, property, and personnel.
6–2. Amendments
In order to reflect the transfers provided by this Order, the following conforming amendments and revocations are ordered:
6–201. Section 306 of Executive Order No. 11051, as amended [50 App. U.S.C. 2271 note], is further amended to read:
"Sec. 306. Emergency telecommunications. The Administrator of General Services shall be responsible for coordinating with the National Security Council in planning for the mobilization of the Nation's telecommunications resources in time of national emergency.".
6–202. Executive Order No. 11490, as amended [formerly set out as a note under
(1) substituting "National Security Council" for "Office of Telecommunications Policy (35 FR 6421)" in Section 401(27), and
(2) substituting the number of this Order for "11556" and deleting references to Executive Order No. 10705 [
6–203. Executive Order No. 11725, as amended [50 App. U.S.C. 2271 note], is further amended by substituting the number and date of this Order for the reference to Executive Order No. 11556 of September 4, 1970 in Section 3(16).
6–204. Executive Orders No. 10705, as amended [
6–3. General
6–301. All Executive agencies to which functions are assigned pursuant to this Order shall issue such rules and regulations as may be necessary to carry them out.
6–302. All Executive agencies are authorized and directed to cooperate with the departments and agencies to which functions are assigned pursuant to this Order and to furnish them such information, support and assistance, not inconsistent with law, as they may require in the performance of those functions.
6–303. (a) Nothing in this Order reassigns any function assigned any agency under the Federal Property and Administrative Services Act of 1949, as amended [see Short Title note set out under
(b) In carrying out the functions in this Order, the Secretary of Commerce shall coordinate activities as appropriate with the Federal Communications Commission and make appropriate recommendations to it as the regulator of the private sector. Nothing in this Order reassigns any function vested by law in the Federal Communications Commission.
6–304. This Order shall be effective March 26, 1978.
Section Referred to in Other Sections
This section is referred to in
§306. Foreign ships; application of section 301
(June 19, 1934, ch. 652, title III, §306,
§307. Licenses
(a) Grant
The Commission, if public convenience, interest, or necessity will be served thereby, subject to the limitations of this chapter, shall grant to any applicant therefor a station license provided for by this chapter.
(b) Allocation of facilities
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, frequencies, 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.
(c) Terms of licenses
(1) Initial and renewal licenses
Each license granted 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 preceding license, if the Commission finds that public interest, convenience, and necessity would be served thereby. Consistent with the foregoing provisions of this subsection, the Commission may by rule prescribe the period or periods for which licenses shall be granted and renewed for particular classes of stations, but the Commission may not adopt or follow any rule 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 action 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 considerations 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 hearing and final decision on such an application and the disposition of any petition for rehearing pursuant to
(d) Renewals
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) Operation of certain radio stations without individual licenses
(1) Notwithstanding any license requirement established in this chapter, if the Commission determines that such authorization serves the public interest, convenience, and necessity, the Commission 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 Commission to operate without an individual license shall comply with all other provisions of this chapter and with rules prescribed by the Commission under this chapter.
(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.
(June 19, 1934, ch. 652, title III, §307,
Amendments
1996—Subsec. (c).
Subsec. (e).
"(1) Notwithstanding any licensing requirement established in this chapter, the Commission may by rule authorize the operation of radio stations without individual licenses in the radio control service and the citizens band radio service if the Commission determines that such authorization serves the public interest, convenience, and necessity.
"(2) Any radio station operator who is authorized by the Commission under paragraph (1) to operate without an individual license shall comply with all other provisions of this chapter and with rules prescribed by the Commission under this chapter.
"(3) For purposes of this subsection, the terms 'radio control service' and 'citizens band radio service' shall have the meanings given them by the Commission by rule."
1982—Subsec. (c).
Subsec. (d).
Subsec. (e).
1981—Subsec. (d).
1962—Subsec. (e).
1960—Subsec. (d).
1952—Subsec. (d). Act July 16, 1952, provided that upon the expiration of any license, any renewal applied for may be granted "if the Commission finds that public interest, convenience, and necessity would be served thereby", and provided that pending a hearing and final decision on an application for renewal and the disposition of any petition for a rehearing the Commission shall continue the license in effect.
1936—Subsec. (b). Act June 5, 1936, amended subsec. (b) generally.
Effective Date of 1981 Amendment
Section 1241(b) of
Section Referred to in Other Sections
This section is referred to in
§308. Requirements for license
(a) Writing; exceptions
The Commission may grant construction permits and station licenses, or modifications or renewals thereof, only upon written 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 defense or security or otherwise in furtherance of the war effort, or (3) in cases of emergency where the Commission finds, in the nonbroadcast 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 permits and station licenses, or modifications or renewals thereof, during the emergency so found by the Commission or during the continuance 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 the 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) Conditions
All applications for station licenses, or modifications or renewals thereof, shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, 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 license, may require from an applicant or licensee 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) Commercial communication
The Commission in granting any license for a station intended or used for commercial communication between the United States or any Territory or possession, continental or insular, subject to the jurisdiction of the United States, and any foreign country, may impose any terms, conditions, or restrictions authorized to be imposed with respect to submarine-cable licenses by
(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 licensee (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.
(June 19, 1934, ch. 652, title III, §308,
Amendments
1996—Subsec. (d).
1994—Subsec. (c).
1992—Subsec. (b).
1962—Subsec. (b).
1952—Subsec. (a). Act July 16, 1952, §6(a), provided that the Commission may grant construction permits and station licenses, or modifications or renewals, only upon written application except that during war or emergency periods no formal application need be filed.
Subsec. (b). Act July 16, 1952, §6(b), substituted "All applications for station licenses or modifications or renewals thereof, shall set forth" for "All such applications shall set forth".
Effective Date of 1996 Amendment
Section 204(c) of
Section Referred to in Other Sections
This section is referred to in
§309. Application for license
(a) Considerations in granting application
Subject to the provisions of this section, the Commission shall determine, in the case of each application filed with it to which
(b) Time of granting application
Except as provided in subsection (c) of this section, no such application—
(1) for an instrument of authorization in the case of a station in the broadcasting or common carrier services, or
(2) for an instrument of authorization in the case of a station in any of the following categories:
(A) industrial radio positioning stations for which frequencies 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 Commission shall by rule prescribe,
shall be granted by the Commission earlier than thirty days following issuance of public notice by the Commission of the acceptance for filing of such application or of any substantial amendment thereof.
(c) Applications not affected by subsection (b)
Subsection (b) of this section shall not apply—
(1) to any minor amendment of an application to which 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
(C) a license under
(D) extension of time to complete construction of authorized 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
(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
(d) Petition to deny application; time; contents; reply; findings
(1) Any party in interest may file with the Commission a petition 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 thirty 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 related 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) of this section (or subsection (k) of this section 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 affidavit of a person or persons with personal knowledge thereof. The applicant shall be given the opportunity to file a reply in which allegations 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) of this section (or subsection (k) of this section in the case of renewal of any broadcast station license), it shall make the grant, deny the petition, and issue a concise statement of the reasons for denying the petition, which statement 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 application would be consistent with subsection (a) of this section (or subsection (k) of this section in the case of renewal of any broadcast station license), it shall proceed as provided in subsection (e) of this section.
(e) Hearings; intervention; evidence; burden of proof
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 application for hearing on the ground or reasons then obtaining and shall forthwith notify the applicant and all other known parties in interest of such action and the grounds 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 parties 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 Federal 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 proceeding 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) Temporary authorization of temporary operations under subsection (b)
When an application subject to subsection (b) of this section has been filed, the Commission, notwithstanding the requirements of such subsection, may, if the grant of such application is otherwise authorized by law and if it finds that there are extraordinary circumstances 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 authorization, 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 Commission shall give expeditious treatment to any timely filed petition to deny such application and to any petition for rehearing of such grant filed under
(g) Classification of applications
The Commission is authorized to adopt reasonable classifications of applications and amendments in order to effectuate the purposes of this section.
(h) Form and conditions of station licenses
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 following 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 granted thereunder shall be assigned or otherwise transferred in violation of this chapter; (3) every license issued under this chapter shall be subject in terms to the right of use or control conferred by
(i) Random selection
(1)
(2) No license or construction permit shall be granted to an applicant selected pursuant to paragraph (1) unless the Commission determines the qualifications of such applicant pursuant to subsection (a) of this section and
(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 written evidence to Commission employees other than administrative law judges; and
(C) omit the determination required by subsection (a) of this section 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 selection under this subsection used for granting licenses or construction 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 diversification of ownership of the media of mass communications. To further diversify the ownership of the media of mass communications, an additional significant preference shall be granted to any applicant controlled by a member or members of a minority group.
(B) The Commission shall have authority to require each qualified applicant seeking a significant preference under subparagraph (A) to submit to the Commission such information as may be necessary to enable the Commission to make a determination regarding 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.
(C) For purposes of this paragraph:
(i) The term "media of mass communications" includes television, radio, cable television, multipoint distribution service, direct broadcast satellite service, and other services, the licensed facilities of which may be substantially devoted toward providing programming 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, 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 accordance with paragraph (1).
(B) The Commission shall have authority to amend such rules from time to time to the extent necessary to carry out the provisions of this subsection. Any such amendment shall be made after notice and opportunity for hearing.
(C) Not later than 180 days after August 10, 1993, the Commission shall prescribe such transfer disclosures 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)
(B) Subparagraph (A) of this paragraph shall not apply with respect to licenses or permits for stations described in
(j) Use of competitive bidding
(1) General authority
If, consistent with the obligations described in paragraph (6)(E), mutually exclusive applications 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 requirements of this subsection.
(2) Exemptions
The competitive bidding authority granted 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 governments and non-government entities and including emergency road services provided by not-for-profit organizations, 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 digital television service given to existing terrestrial broadcast licensees to replace their analog television service licenses; or
(C) for stations described in
(3) Design of systems of competitive bidding
For each class of licenses or permits that the Commission grants through the use of a competitive bidding system, the Commission shall, by regulation, establish a competitive bidding methodology. 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 bidding using a contingent combinatorial bidding system that permits prospective bidders to bid on combinations or groups of licenses 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 permits, 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
(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 administrative 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 excessive concentration of licenses and by disseminating licenses 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 commercial 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; and
(E) ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed—
(i) before issuance of bidding rules, to permit notice 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.
(4) Contents of regulations
In prescribing regulations pursuant to paragraph (3), the Commission shall—
(A) consider alternative payment schedules and methods of calculation, including lump sums or guaranteed installment payments, with or without royalty payments, or other schedules or methods that promote the objectives described in paragraph (3)(B), and combinations of such schedules and methods;
(B) include performance requirements, such as appropriate 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 permittees, and to promote investment in and rapid deployment of new technologies and services;
(C) consistent with the public interest, convenience, and necessity, the purposes of this chapter, and the characteristics 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 applicants, including small businesses, rural telephone companies, 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 companies, 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 preferences, 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 established, to obtain any license or permit being assigned pursuant 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 filing. No license shall be granted to an applicant selected pursuant to this subsection unless the Commission determines that the applicant is qualified pursuant to subsection (a) of this section and
(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 chapter;
(B) limit or otherwise affect the requirements of subsection (h) of this section,
(C) diminish the authority of the Commission under the other provisions of this chapter to regulate or reclaim spectrum 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 obligation in the public interest to continue to use engineering solutions, negotiation, threshold qualifications, service regulations, and other means in order to avoid mutual exclusivity 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 telecommunications service or technology; or
(H) be construed to relieve any applicant for a license or permit of the obligation to pay charges imposed pursuant to
(7) Consideration of revenues in public interest determinations
(A) Consideration prohibited
In making a decision pursuant to
(B) Consideration limited
In prescribing regulations pursuant to paragraph (4)(A) of this subsection, the Commission may not base a finding of public interest, convenience, and necessity solely or predominantly on the expectation of Federal revenues from the use of a system of competitive bidding under this subsection.
(C) Consideration of demand for spectrum not affected
Nothing in this paragraph shall be construed to prevent the Commission from continuing to consider consumer demand for spectrum-based services.
(8) Treatment of revenues
(A) General rule
Except as provided in subparagraph (B), all proceeds from the use of a competitive bidding system under this subsection shall be deposited in the Treasury in accordance with
(B) Retention of revenues
Notwithstanding subparagraph (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 subsection. Such offsetting collections shall be available for obligation subject to the terms and conditions of the receiving appropriations account, and shall be deposited in such accounts on a quarterly basis. Such offsetting collections are authorized to remain available until expended. No sums may be retained under this subparagraph during any fiscal year beginning after September 30, 1998, if the annual report of the Commission under
(C) Deposit and use of auction escrow accounts
Any deposits the Commission may require for the qualification of any person to bid in a system of competitive bidding pursuant to this subsection shall be deposited in an interest bearing account at a financial institution designated for purposes of this subsection by the Commission (after consultation with the Secretary of the Treasury). Within 45 days following the conclusion of the competitive bidding—
(i) the deposits of successful bidders shall be paid to the Treasury;
(ii) the deposits of unsuccessful bidders shall be returned to such bidders; and
(iii) the interest accrued to the account shall be transferred to the Telecommunications Development Fund established pursuant to
(9) Use of former Government spectrum
The Commission shall, not later than 5 years after August 10, 1993, 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
(B) have been reassigned from Government use pursuant to part B of the National Telecommunications and Information Administration Organization Act [
(10) Authority contingent on availability of additional 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 Information Administration Organization Act [
(ii) such report recommends for immediate reallocation bands of frequencies that, in the aggregate, span not less than 50 megahertz;
(iii) such bands of frequencies meet the criteria required by section 113(a) of such Act [
(iv) the Commission has completed the rulemaking required by
(B) Subsequent conditions
The Commission's authority to issue licenses or permits under this subsection on and after 2 years after August 10, 1993, 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 regulations 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 August 10, 1993, a study of current and future spectrum needs of State and local government public safety agencies through the year 2010, and a specific plan to ensure that adequate frequencies are made available to public safety licensees; or
(v) the Commission has failed under
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, 2007.
(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;
(B) describing the methodologies established by the Commission pursuant to paragraphs (3) and (4);
(C) comparing the relative advantages and disadvantages of such methodologies in terms of attaining the objectives 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 secured prompt delivery of service to rural areas and have adequately addressed the needs of rural spectrum 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 connection 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 persons who make significant contributions to the development of a new telecommunications service or technology, except in accordance with the requirements of this paragraph.
(B) Recovery of value
The Commission shall recover for the public a portion of the value of the public spectrum resource made available to such person by requiring such person, as a condition for receipt of the license, 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 characteristics to the license awarded to such person, and excluding licenses that the Commission determines are subject to bidding anomalies due to the award of preferential treatment;
(ii) dividing each such winning bid by the population 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.
(C) Installments permitted
The Commission shall require such person to pay the sum required by subparagraph (B) in a lump sum or in guaranteed installment payments, 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 filing 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 substantially enhance an existing service. Such regulations shall—
(i) specify the procedures and criteria by which the significance of such contributions will be determined, 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 necessary to prevent unjust enrichment by ensuring that the value of any such contribution justifies any reduction in the amounts paid for comparable licenses under this subsection;
(iii) be prescribed not later than 6 months after December 8, 1994;
(iv) not apply to applications that have been accepted for filing on or before September 1, 1994; and
(v) cease to be effective on the date of the expiration of the Commission's authority under subparagraph (F).
(E) Implementation with respect to pending applications
In applying this paragraph to any broadband licenses 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, released 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 December 8, 1994, 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 Commission shall use, as the most reasonably comparable licenses for purposes of subparagraph (B)(i), the 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 obtained preferential treatment;
(iv) for purposes of subparagraph (C), the Commission shall permit guaranteed installment payments over a period of 5 years, subject to—
(I) the payment only of interest on unpaid balances 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 licenses described in clause (iii); and
(II) payment of the unpaid balance and interest thereon after the end of such 2 years in accordance 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 licensee.
The Commission shall not include in any amounts required to be collected under clause (v) the interest on unpaid 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 development of a new service or to the development of new technologies that substantially enhance an existing service shall expire on August 5, 1997.
(G) Effective date
This paragraph shall be effective on December 8, 1994, and apply to any licenses issued on or after August 1, 1994, by the Federal Communications Commission pursuant to any licensing procedure that provides preferential treatment (by precluding the filing 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 substantially enhance an existing service.
(14) Auction of recaptured broadcast television spectrum
(A) Limitations on terms of terrestrial television broadcast licenses
A television broadcast license that authorizes analog television service may not be renewed to authorize such service for a period that extends beyond December 31, 2006.
(B) Extension
The Commission shall extend the date described in subparagraph (A) for any station that requests such extension in any television market if the Commission finds that—
(i) one or more of the stations in such market that are licensed to or affiliated with one of the four largest national television networks are not broadcasting a digital television service signal, and the Commission finds that each such station has exercised due diligence and satisfies the conditions for an extension of the Commission's applicable construction deadlines for digital television service in that market;
(ii) digital-to-analog converter technology is not generally available in such market; or
(iii) in any market in which an extension is not available under clause (i) or (ii), 15 percent or more of the television households in such market—
(I) do not subscribe to a multichannel video programming distributor (as defined in
(II) do not have either—
(a) at least one television receiver capable of receiving the digital television service signals of the television stations licensed in such market; or
(b) at least one television receiver of analog television service signals equipped with digital-to-analog converter technology capable of receiving the digital television service signals of the television stations licensed in such market.
(C) Spectrum reversion and resale
(i) The Commission shall—
(I) ensure that, as licenses for analog television service expire pursuant to subparagraph (A) or (B), each licensee shall cease using electromagnetic spectrum assigned to such service according to the Commission's direction; and
(II) reclaim and organize the electromagnetic spectrum in a manner consistent with the objectives 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. The Commission shall complete the assignment of such licenses, and report to the Congress the total revenues from such competitive bidding, by September 30, 2002.
(D) Certain limitations on qualified bidders prohibited
In prescribing any regulations relating to the qualification of bidders for spectrum reclaimed pursuant to subparagraph (C)(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 bidder 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-ownership 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.
(k) Broadcast station renewal procedures
(1) Standards for renewal
If the licensee of a broadcast station submits an application to the Commission for renewal of such license, the Commission shall grant the application if it finds, with respect to that station, during the preceding term of its license—
(A) the station has served the public interest, convenience, and necessity;
(B) there have been no serious violations by the licensee of this chapter or the rules and regulations of the Commission; and
(C) there have been no other violations by the licensee of this chapter 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 application on terms and conditions as are appropriate, including renewal for a term less than the maximum otherwise permitted.
(3) Standards for denial
If the Commission determines, after notice and opportunity for a hearing as provided in subsection (e) of this section, that a licensee has failed to meet the requirements 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
(B) only thereafter accept and consider such applications for a construction permit as may be filed under
(4) Competitor consideration prohibited
In making the determinations specified in paragraph (1) or (2), the Commission shall not consider whether the public interest, convenience, 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 comparative licensing cases
With respect to competing applications for initial licenses or construction permits for commercial radio or television stations that were filed with the Commission before July 1, 1997, the Commission shall—
(1) have the authority to conduct a competitive bidding proceeding pursuant to subsection (j) of this section 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 permit such persons to enter an agreement to procure the removal of a conflict between their applications during the 180-day period beginning on August 5, 1997.
(June 19, 1934, ch. 652, title III, §309,
References in Text
The National Telecommunications and Information Administration Organization Act, referred to in subsec. (j)(9)(B), is title I of
Amendments
1997—Subsec. (i)(1).
"(A) there is more than one application for any initial license or construction permit which will involve a use of the electromagnetic spectrum; and
"(B) the Commission has determined that the use is not described in subsection (j)(2)(A) of this section;
then the Commission shall have the authority to grant such license or permit to a qualified applicant through the use of a system of random selection."
Subsec. (i)(5).
Subsec. (j)(1), (2).
"(1)
"(2)
"(A) the principal use of such spectrum will involve, or is reasonably likely to involve, the licensee receiving compensation from subscribers in return for which the licensee—
"(i) enables those subscribers to receive communications signals that are transmitted utilizing frequencies on which the licensee is licensed to operate; or
"(ii) enables those subscribers to transmit directly communications signals utilizing frequencies on which the licensee is licensed to operate; and
"(B) a system of competitive bidding will promote the objectives described in paragraph (3)."
Subsec. (j)(3).
Subsec. (j)(3)(E).
Subsec. (j)(4)(F).
Subsec. (j)(8)(B).
Subsec. (j)(11).
Subsec. (j)(13)(F).
Subsec. (j)(14).
Subsec. (l).
1996—Subsec. (b)(2)(A) to (G).
Subsec. (d).
Subsec. (j)(8)(B).
Subsec. (j)(8)(C).
Subsec. (k).
1994—Subsec. (c)(2)(F).
Subsec. (i)(4)(A).
Subsec. (j)(13).
1993—Subsec. (i).
Subsec. (j).
1984—Subsec. (h).
1982—Subsec. (f).
Subsec. (i)(1).
Subsec. (i)(2).
Subsec. (i)(3)(A).
Subsec. (i)(3)(C).
Subsec. (i)(4)(A).
1981—Subsec. (i).
1964—Subsec. (c)(2)(G).
Subsec. (e).
1960—
1956—Subsec. (c). Act Jan. 20, 1956, struck out hearings with respect to facts which, even if true, would not be grounds for setting aside the Commission's grant; gave the Commission discretion to keep in effect the protested authorization but required the Commission to affirmatively find and set forth that the public interest requires grant to remain in effect; and authorized Commission to redraft issues urged by protestant in accordance with the facts alleged in the protest.
1954—Subsec. (c). Act Mar. 26, 1954, substituted "thirty days" for "fifteen days" in fourth sentence.
1952—Act July 16, 1952, amended section generally to set forth procedure to be followed in cases of denial of applications.
Effective Date of 1997 Amendment
Section 3002(a)(5) of
Effective Date of 1996 Amendment
Amendment by section 204(a) of
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1960 Amendment
Section 4(d)(1)–(3) of
"(1) Subsections (a) and (b) of this section [amending this section and
"(2) Section 309 of the Communications Act of 1934 [this section] (as amended by subsection (a) of this section) shall apply to any application to which section 308 of such Act [
"(3) Section 309 of the Communications Act of 1934 [this section], as in effect immediately before the effective date of subsection (a) of this section, shall, on and after such effective date, apply only to applications to which section 308 of such Act [
Deadline for Collection
Section 3007 of title III of
Administrative Procedures for Spectrum Auctions
Section 3008 of title III of
Deadlines for Commission Action Regarding Competitive Bidding
Section 6002(d)(1), (2) of
"(1)
"(2)
"(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 Communications 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 permits in the personal communications service."
Special Rule Regarding Subsection (i) Licenses and Permits
Section 6002(e) of
Authority To Use the System of Random Selection With Respect to Applications for Initial Licenses and Construction Permits
Section 1242(b) of
"(1) is filed with the Commission after the date of the enactment of this Act [Aug. 13, 1981]; or
"(2) is pending before the Commission on such date of enactment but has not been designated for hearing on or before such date of enactment."
Section Referred to in Other Sections
This section is referred to in
§310. License ownership restrictions
(a) Grant to or holding by foreign government or representative
The station license required under this chapter shall not be granted to or held by any foreign government or the representative thereof.
(b) Grant to or holding by alien or representative, foreign corporation, etc.
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 foreign government;
(3) any corporation of which more than one-fifth of the capital stock is owned of record or voted by aliens or their representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign 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 representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license.
(c) Authorization for aliens licensed by foreign governments; multilateral or bilateral agreement to which United States and foreign country are parties as prerequisite
In addition to amateur station licenses which the Commission may issue to aliens pursuant to this chapter, 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 Puerto Rico provided there is in effect a multilateral 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 chapter and of subchapter II of
(d) Assignment and transfer of construction permit or station license
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 license, to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby. Any such application shall be disposed of as if the proposed transferee or assignee were making application under
(e) Administration of regional concentration rules for broadcast stations
(1) In the case of any broadcast station, and any ownership interest therein, which is excluded from the regional concentration rules by reason of the savings provision for existing facilities provided 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 concentration 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 primary service contour overlap of any of the stations.
(June 19, 1934, ch. 652, title III, §310,
Codification
In subsec. (c), "subchapter II of
Amendments
1996—Subsec. (b)(3).
Subsec. (b)(4).
1990—Subsec. (c).
1983—Subsec. (e).
1974—Subsec. (a).
Subsecs. (b) to (d).
1971—Subsec. (a).
1964—Subsec. (a).
1958—Subsec. (a).
1952—Subsec. (b). Act July 16, 1952, provided that construction permits and station licenses cannot be transferred, assigned, or disposed of except upon a finding by the Commission that public interest, convenience, or necessity will be served thereby, and that such transfer application will be treated the same as if made under
Section Referred to in Other Sections
This section is referred to in
§311. Requirements as to certain applications in broadcasting service
(a) Notices of filing and hearing; form and contents
When there is filed with the Commission any application to which
(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
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) Place of hearing
Hearings referred to in subsection (a) of this section 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) Agreement between two or more applicants; approval of Commission; pendency of application
(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 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.
(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 manner as the Commission shall by rule require.
(3) The Commission shall approve the agreement only if it determines that (A) the agreement is consistent with the public interest, 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 Commission granting or denying it is no longer subject to rehearing by the Commission or to review by any court.
(d) License for operation of station; agreement to withdraw application; approval of Commission
(1) If there are pending before the Commission an application for the renewal of a license granted for the operation of a broadcasting station and one or more applications for a construction permit relating to such station, only one of which can be granted, 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 transfer of assets or any other thing of value by the remaining applicant or applicants.
(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 manner as the Commission shall require.
(3) The Commission shall approve the agreement only if it determines that (A) the agreement is consistent with the public interest, 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 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 Commission granting or denying it is no longer subject to rehearing by the Commission or to review by any court.
(June 19, 1934, ch. 652, title III, §311,
Amendments
1982—Subsec. (c)(3).
Subsec. (d)(1).
Subsec. (d)(3)(B).
1981—Subsec. (d).
1960—
1952—Act July 16, 1952, omitted provisions relating to monopoly.
§312. Administrative sanctions
(a) Revocation of station license or construction permit
The Commission may revoke any station license or construction permit—
(1) for false statements knowingly made either in the application or in any statement of fact which may be required pursuant to
(2) because of conditions coming to the attention of the Commission which would warrant it in refusing to grant a license 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 repeated failure to observe any provision of this chapter or any rule or regulation of the Commission authorized by this chapter 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
(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 by a legally qualified candidate for Federal elective office on behalf of his candidacy.
(b) Cease and desist orders
Where any person (1) has failed to operate substantially as set forth in a license, (2) has violated or failed to observe any of the provisions of this chapter, or
(c) Order to show cause
Before revoking a license or permit pursuant to subsection (a) of this section, or issuing a cease and desist order pursuant to subsection (b) of this section, 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 licensee, 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 property is involved, the Commission may provide in the order for a shorter period. If after hearing, or a waiver thereof, the Commission 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) Burden of proof
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) Procedure for issuance of cease and desist order
The provisions of
(f) "Willful" and "repeated" defined
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 chapter or any rule or regulation of the Commission authorized by this chapter 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) Limitation on silent station authorizations
If a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted 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.
(June 19, 1934, ch. 652, title III, §312,
Codification
In subsec. (e), "
Amendments
1996—Subsec. (g).
1982—Subsec. (f).
1972—Subsec. (a)(7).
1960—Subsecs. (a), (b).
1952—Act July 16, 1952, amended section generally to provide for revocation of licenses and permits only for acts willfully and knowingly committed or for disregarding cease and desist orders, and to authorize the Commission to issue cease and desist orders.
Repeals
Repeal of title I of
Section Referred to in Other Sections
This section is referred to in
§312a. Revocation of operator's license used in unlawful distribution of controlled substances
The Federal Communications Commission may revoke any private operator's license issued to any person under the Communications Act of 1934 (
(
References in Text
The Communications Act of 1934, referred to in text, is act June 19, 1934, ch. 652,
Codification
Section was enacted as part of the Anti-Drug Abuse Act of 1986, and also as part of the National Drug Interdiction Improvement Act of 1986, and not as part of the Communications Act of 1934 which comprises this chapter.
§313. Application of antitrust laws to manufacture, sale, and trade in radio apparatus
(a) Revocation of licenses
All laws of the United States relating to unlawful restraints and monopolies and to combinations, contracts, or agreements in restraint of trade are declared to be applicable to the manufacture and sale of and to trade in radio apparatus and devices entering into or affecting interstate or foreign commerce and to interstate or foreign radio communications. Whenever in any suit, action, 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 authorized 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 other 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) Refusal of licenses and permits
The Commission is hereby directed to refuse a station license and/or the permit hereinafter required for the construction of a station to any person (or to any person directly or indirectly controlled by such person) whose license has been revoked by a court under this section.
(June 19, 1934, ch. 652, title III, §313,
References in Text
All laws of the United States relating to unlawful restraints and monopolies and to combinations, contracts, or agreements in restraint of trade, referred to in subsec. (a), mean the antitrust laws which are classified generally to
Amendments
1960—
Transfer of Functions
All executive and administrative functions of the Federal Trade Commission were, with certain exceptions, transferred to the Chairman of such Commission by Reorg. Plan No. 8 of 1950, §1, eff. May 24, 1950, 15 F.R. 3175,
§314. Competition in commerce; preservation
After the effective date of this chapter 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 transmitting and/or receiving for hire energy, communications, or signals by radio in accordance with the terms of the license issued under this chapter, 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 unlawfully 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 common control with, such person, or through an agent, or otherwise, in the business of transmitting and/or receiving for hire messages 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) between any place in any State, Territory, or possession of the United States, or 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 apparatus therein, or any system for transmitting and/or receiving radio communications or signals 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 radio station, 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.
(June 19, 1934, ch. 652, title III, §314,
References in Text
For effective date of this chapter, see
§315. Candidates for public office
(a) Equal opportunities requirement; censorship prohibition; allowance of station use; news appearances exception; public interest; public issues discussion opportunities
If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is 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 (including but not limited to political conventions and activities incidental 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 presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
(b) Broadcast media rates
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—
(1) during the forty-five days preceding 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
(2) at any other time, the charges made for comparable use of such station by other users thereof.
(c) Definitions
For purposes of this section—
(1) the term "broadcasting station" includes a community antenna television system; and
(2) the terms "licensee" and "station licensee" when used with respect to a community antenna television system mean the operator of such system.
(d) Rules and regulations
The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section.
(June 19, 1934, ch. 652, title III, §315,
Amendments
1974—Subsec. (c).
Subsec. (d).
Subsecs. (e) to (g).
1972—Subsec. (a).
Subsec. (b).
Subsecs. (c) to (g).
1959—Subsec. (a).
1952—Act July 16, 1952, designated existing provisions as subsecs. (a) and (c) and added subsec. (b).
Repeals
Repeal of title I of
Effective Date of 1974 Amendment
Amendment by
Reexamination of 1959 Amendment; Declaration of Congressional Intent
Section 2 of
"(a) The Congress declares its intention to reexamine from time to time the amendment to section 315(a) of the Communications Act of 1934 [subsec. (a) of this section] made by the first section of this Act, to ascertain whether such amendment has proved to be effective and practicable.
"(b) To assist the Congress in making its reexaminations of such amendment, the Federal Communications Commission shall include in each annual report it makes to Congress a statement setting forth (1) the information and data used by it in determining questions arising from or connected with such amendment, and (2) such recommendations as it deems necessary in the public interest."
Suspension of Equal Time Provisions for 1960 Campaign
Section Referred to in Other Sections
This section is referred to in
§316. Modification by Commission of station licenses or construction permits; burden of proof
(a)(1) Any station license or construction permit may be modified by the Commission either for a limited time or for the duration of the term thereof, if in the judgment of the Commission such action will promote the public interest, convenience, and necessity, or the provisions of this chapter or of any treaty ratified by the United States will be more fully complied with. No such order of modification 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 opportunity, of at least thirty days, to protest such proposed order of modification; except that, where safety of life or property is involved, 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
(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 license or permit of a person described in subsection (a)(2) of this section, such burdens shall be as determined by the Commission.
(June 19, 1934, ch. 652, title III, §316, as added July 16, 1952, ch. 879, §12,
Prior Provisions
A prior section 316 of act June 19, 1934, related to lotteries and similar devices, prior to repeal by act June 25, 1948, ch. 645, §21,
Amendments
1983—Subsec. (a).
Subsec. (b).
§317. Announcement of payment for broadcast
(a) Disclosure of person furnishing
(1) All matter broadcast by any radio station for which any money, service or other valuable consideration is directly or indirectly 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 consideration" 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, trademark, 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 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 inducement to the broadcast of such program.
(b) Disclosure to station of payments
In any case where a report has been made to a radio station, as required by
(c) Acquiring information from station employees
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) Waiver of announcement
The Commission may waive the requirement of an announcement as provided in this section in any case or class of cases with respect to which it determines that the public interest, convenience, or necessity does not require the broadcasting of such announcement.
(e) Rules and regulations
The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section.
(June 19, 1934, ch. 652, title III, §317,
Amendments
1980—Subsec. (b).
1960—
Section Referred to in Other Sections
This section is referred to in
§318. Transmitting apparatus; operator's license
The actual operation of all transmitting apparatus in any radio station for which a station license is required by this chapter 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 devices and for the operation of such devices.
(June 19, 1934, ch. 652, title III, §318,
Amendments
1994—
1992—
1976—
1960—
1937—Act Mar. 29, 1937, inserted provisos.
Cross References
Radiotelegraph operators licensed as ship's officers, see
§319. Construction permits
(a) Requirements
No license shall be issued under the authority of this chapter for the operation of any station unless a permit for its construction has been granted by the Commission. The application for a construction 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 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) Time limitation; forfeiture
Such permit for construction shall show specifically the earliest 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 Commission may allow, unless prevented by causes not under the control of the grantee.
(c) Licenses for operation
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 Commission 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)–(g) of this title shall not apply with respect to any station license the issuance of which is provided for and governed by the provisions of this subsection.
(d) Government, amateur, or mobile station; waiver
A permit for construction shall not be required for Government stations, amateur stations, or mobile stations. A permit for construction shall not be required for public coast stations, privately owned fixed microwave stations, or stations licensed to common carriers, unless the Commission determines that the public interest, convenience, and necessity would be served by requiring such permits for any such stations. With respect to any broadcasting 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 broadcast 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.
(June 19, 1934, ch. 652, title III, §319,
Amendments
1996—Subsec. (d).
1992—Subsec. (a).
1982—Subsec. (a).
Subsec. (d).
1962—Subsec. (a).
1960—Subsec. (c).
Subsec. (d).
1954—Subsec. (b). Act Mar. 26, 1954, struck out sentence providing that a construction permit should not be required for Government stations, amateur stations, or stations upon mobile vessels, railroad rolling stock, or aircraft, such provisions being covered by subsec. (d) of this section.
Subsec. (d). Act Mar. 26, 1954, added subsec. (d).
1952—Subsec. (a). Act July 16, 1952, §13(a), (b), struck out "upon written application therefor" after "by the Commission" in first sentence, struck out second sentence, and substituted in third sentence, "The application for a construction permit shall set forth" for "This application shall set forth".
Subsec. (b). Act July 16, 1952, §13(c), (d), struck out second sentence relating to assignment of rights under a permit, and struck out last two sentences, which are incorporated in subsec. (c).
Subsec. (c). Act July 16, 1952, §13(d), added subsec. (c).
Effective Date of 1960 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§320. Stations liable to interfere with distress signals; designation and regulation
The Commission is authorized to designate from time to time radio stations the communications or signals of which, in its opinion, are liable to interfere with the transmission or reception of distress 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.
(June 19, 1934, ch. 652, title III, §320,
§321. Distress signals and communications; equipment on vessels; regulations
(a) The transmitting set in a radio station on shipboard may be adjusted in such a manner as to produce a maximum of radiation, irrespective of the amount of interference which may thus be caused, when such station is sending radio communications or signals of distress and radio communications relating thereto.
(b) All radio stations, including Government stations and stations on board foreign vessels when within the territorial waters of the United States, shall give absolute priority to radio communications or signals relating to ships in distress; shall cease all sending on frequencies which will interfere with hearing a radio communication or signal of distress, and, except when engaged in answering 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 signals relating thereto, and shall assist the vessel in distress, so far as possible, by complying with its instructions.
(June 19, 1934, ch. 652, title III, §321,
Amendments
1937—Subsec. (a). Act May 20, 1937, struck out provisions which required radio stations on shipboard to be equipped to transmit radio communications or signals of distress on the frequency specified by the Commission, with apparatus capable of transmitting and receiving messages over a distance of at least 100 miles by day or night.
§322. Exchanging radio communications between land and ship stations and from ship to ship
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.
(June 19, 1934, ch. 652, title III, §322,
Amendments
1937—Act May 20, 1937, provided for radio communications with aircraft stations.
§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 interference with the work of Government stations cannot be avoided when they are operating simultaneously, such private or commercial stations as do interfere with the transmission or reception of radio communications or signals by the Government stations concerned shall not use their transmitters during the first fifteen minutes of each hour, local standard time.
(b) The Government stations for which the above-mentioned division 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.
(June 19, 1934, ch. 652, title III, §323,
§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 minimum amount of power necessary to carry out the communication desired.
(June 19, 1934, ch. 652, title III, §324,
§325. False, fraudulent, or unauthorized transmissions
(a) False distress signals; rebroadcasting programs
No person within the jurisdiction of the United States shall knowingly utter or transmit, or cause to be uttered or transmitted, any false or fraudulent signal of distress, or communication relating thereto, nor shall any broadcasting station rebroadcast the program or any part thereof of another broadcasting station without the express authority of the originating station.
(b) Consent to retransmission of broadcasting station signals
(1) No cable system or other multichannel video programming distributor shall retransmit the signal of a broadcasting station, or any part thereof, except—
(A) with the express authority of the originating station;
(B) under
(C) under
(2) This subsection shall not apply—
(A) to retransmission of the signal of a noncommercial television 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
(iii) the satellite carrier complies with any network nonduplication, syndicated exclusivity, and sports blackout rules adopted by the Commission under
(C) until December 31, 2004, to retransmission of the signals 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 multichannel 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
(E) during the 6-month period beginning on November 29, 1999, to the retransmission of the signal of a television broadcast station within the station's local market by a satellite carrier directly to its subscribers under the statutory license of
For purposes of this paragraph, the terms "satellite carrier" and "superstation" have the meanings given those terms, respectively, in
(3)(A) Within 45 days after October 5, 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
(B) The regulations required by subparagraph (A) shall require that television stations, within one year after October 5, 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
(C) Within 45 days after November 29, 1999, the Commission shall commence a rulemaking proceeding to revise the regulations governing the exercise by television broadcast stations of the right to grant retransmission consent under this subsection, and such other regulations as are necessary to administer the limitations contained in paragraph (2). The Commission shall complete all actions necessary to prescribe such regulations within 1 year after November 29, 1999. Such regulations shall—
(i) establish election time periods that correspond with those regulations adopted under subparagraph (B) of this paragraph; and
(ii) until January 1, 2006, 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 consent agreements containing different terms and conditions, including price terms, with different multichannel video programming distributors if such different terms and conditions are based on competitive marketplace considerations.
(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
(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
(6) Nothing in this section shall be construed as modifying the compulsory copyright license established in
(7) For purposes of this subsection, the term—
(A) "network station" has the meaning given such term under
(B) "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.
(c) Broadcast to foreign countries for rebroadcast to United States; permit
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 mechanical 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 consistently in the United States, without first obtaining a permit from the Commission upon proper application therefor.
(d) Application for permit
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
(e) Enforcement proceedings against satellite carriers concerning retransmissions of television broadcast stations 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 subsection (b)(2)(E) of this section 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) of this section, 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 occurred;
(D) the street address of at least one person in the local market of the station to whom the alleged retransmission was made;
(E) a statement that the retransmission was not expressly 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 station may serve a satellite carrier with a complaint concerning an alleged violation of subsection (b)(1) of this section 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 delivery 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 packaging. 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 television 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 business days after the date of service, the satellite carrier shall file an answer with the Commission and shall serve the answer 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 satellite carrier against which a complaint under this subsection is filed.
(B) Defenses
The defenses referred to under subparagraph (A) are the defenses that—
(i) the satellite carrier did not retransmit the television broadcast station to any person in the local market of the station during the time period specified in the complaint;
(ii) the television broadcast station had, in a writing signed by an officer of the television broadcast station, 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) of this section 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
(iv) the station being retransmitted is a noncommercial television broadcast station.
(5) Counting of violations
The retransmission without consent of a particular television broadcast station on a particular day to one or more persons in the local market of the station shall be considered a separate violation of subsection (b)(1) of this section.
(6) Burden of proof
With respect to each alleged violation, the burden of proof shall be on a television broadcast station 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 satellite carrier with respect to all defenses other than the defense under paragraph (4)(B)(i).
(7) Procedures
(A) Regulations
Within 60 days after November 29, 1999, the Commission shall issue procedural regulations implementing this subsection which shall supersede procedures under
(B) Determinations
(i) In general
Within 45 days after the filing of a complaint, the Commission shall issue a final determination in any proceeding brought under this subsection. The Commission's final determination shall specify the number of violations committed by the satellite 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 material facts. Except as provided in the preceding sentence, 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 necessary to take prehearing depositions, on such schedule 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 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 Commission shall be required to—
(A) make a finding that the satellite carrier violated subsection (b)(1) of this section 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 retransmissions 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) of this section with respect to such station;
(ii) if the satellite carrier is found to have violated subsection (b)(1) of this section with respect to more than two television broadcast stations, a cease-and-desist order directing 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 compliance with subsection (b)(1) of this section with respect to such stations; and
(iii) an award to the complainant of that complainant'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 Commission; 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 reversing 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 jurisdiction over the satellite carrier if the carrier, or a company 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 District of Columbia, which may find personal jurisdiction based on the satellite carrier's ownership of licenses issued by the Commission. An application by a television broadcast station for an order enforcing any cease-and-desist relief 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 jurisdiction 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 subsection. Such action shall not be subject to transfer under
(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 Appeals may believe appropriate.
(B) Appeal
If the Commission denies relief in response to a complaint filed by a television broadcast station under this subsection, the television broadcast station filing the complaint may file an appeal with the United States Court of Appeals for the District of Columbia Circuit.
(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.
(June 19, 1934, ch. 652, title III, §325,
Amendments
1999—Subsec. (b)(1), (2).
"(1) Following the date that is one year after October 5, 1992, no cable system or other multichannel video programming distributor shall retransmit the signal of a broadcasting station, or any part thereof, except—
"(A) with the express authority of the originating station; or
"(B) pursuant to
"(2) The provisions of this subsection shall not apply to—
"(A) retransmission of the signal of a noncommercial broadcasting station;
"(B) retransmission directly to a home satellite antenna of the signal of a broadcasting station that is not owned or operated by, or affiliated with, a broadcasting network, if such signal was retransmitted by a satellite carrier on May 1, 1991;
"(C) retransmission of the signal of a broadcasting station that is owned or operated by, or affiliated with, a broadcasting network directly to a home satellite antenna, if the household receiving the signal is an unserved household; or
"(D) retransmission by a cable operator or other multichannel video programming distributor of the signal of a superstation if such signal was obtained from a satellite carrier and the originating station was a superstation on May 1, 1991.
For purposes of this paragraph, the terms 'satellite carrier', 'superstation', and 'unserved household' have the meanings given those terms, respectively, in
Subsec. (b)(3)(C).
Subsec. (b)(4).
Subsec. (b)(5).
Subsec. (b)(7).
Subsec. (e).
1992—Subsecs. (b) to (d).
Effective Date of 1992 Amendment
Section 28 of
Severability
Section Referred to in Other Sections
This section is referred to in
§326. Censorship
Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications 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.
(June 19, 1934, ch. 652, title III, §326,
Amendments
1948—Act June 25, 1948, repealed last sentence relating to use of indecent language. See
Effective Date of 1948 Amendment
Amendment by act June 25, 1948, effective as of Sept. 1, 1948, see section 20 of that act.
§327. Naval stations; use for commercial messages; rates
The Secretary of the Navy is authorized, unless restrained by international agreement, under the terms and conditions 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 apparatus, wherever located, owned by the United States and under the control of the Navy Department, (a) for the reception and transmission 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, between 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, the Philippine Islands, and the Orient, and between 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 privately owned and operated stations are capable of meeting the normal communication requirements between such countries or localities or between any locality and privately operated ships, and the Commission shall have notified the Secretary of the Navy thereof.
(June 19, 1934, ch. 652, title III, §327,
References in Text
The Philippine Islands, referred to in text, were granted their independence by Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7517,
§328. Repealed. Pub. L. 103–414, title III, §304(a)(10), Oct. 25, 1994, 108 Stat. 4297
Section, act June 19, 1934, ch. 652, title III, §328,
§329. Administration of radio laws in Territories and possessions
The Commission is authorized to designate any officer or employee 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 chapter as the Commission may prescribe and also to designate any officer or employee of any other department of the Government to render such services at any place within the United States in connection with the administration of this subchapter as may be necessary: Provided, That such designation shall be approved by the head of the department in which such person is employed.
(June 19, 1934, ch. 652, title III, §329,
Amendments
1937—Act May 20, 1937, struck out provisions which prohibited designation of officers and employees in the Philippine Islands and Canal Zone and inserted provisions permitting designation of officers and employees within the United States.
§330. Prohibition against shipment of certain 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 subsection (s) of
(b) No person shall ship in interstate commerce, manufacture, assemble, or import from any foreign country into the United States, any apparatus described in
(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
(2) This subsection shall not apply to carriers transporting apparatus referred to in paragraph (1) without trading in it.
(3) The rules prescribed by the Commission under this subsection 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 supervision of the Commission.
(4) As new video technology is developed, the Commission shall take such action as the Commission determines appropriate to ensure that blocking service continues to be available to consumers. If the Commission determines that an alternative blocking technology exists that—
(A) enables parents to block programming based on identifying programs without ratings,
(B) is available to consumers at a cost which is comparable to the cost of technology that allows parents to block programming 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 technology that allows parents to block programming based on common ratings,
the Commission shall amend the rules prescribed pursuant to
(d) For the purposes of this section, and
(1) The term "interstate commerce" means (A) commerce between any State, the District of Columbia, the Commonwealth 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 Columbia 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.
(June 19, 1934, ch. 652, title III, §330, as added
References in Text
For definition of Canal Zone, referred to in subsec. (d)(2), see
Amendments
1996—Subsec. (c).
Subsec. (d).
1990—Subsecs. (b), (c).
Effective Date of 1990 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§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 very high frequency commercial television broadcasting in a manner which ensures that not less than one such channel shall be allocated 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 commercial television broadcast channel at the time 1 such notification, the Commission shall, notwithstanding 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) 2 of this title.
(b) AM radio stations
It shall be the policy of the Commission, 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 primary 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 community of license 24 hours a day, if technically feasible. The Commission shall report to the appropriate committees of Congress within 30 days after December 20, 1991, on how it intends to meet this policy goal.
(June 19, 1934, ch. 652, title III, §331, as added
References in Text
Subsec. (d) of
Codification
December 20, 1991, referred to in subsec. (b), was in the original "the date of enactment of this Act", which was translated as meaning the date of enactment of
Another section 331 of act June 19, 1934 was renumbered section 332 and is classified to
Prior Provisions
A prior section 331, act June 19, 1934, ch. 652, title III, §331, as added Sept. 14, 1973,
Amendments
1994—
1991—
1 So in original. Probably should be followed by "of".
2 See References in Text note below.
§332. Mobile services
(a) Factors which Commission must consider
In taking actions to manage the spectrum to be made available for use by the private mobile services, the Commission shall consider, consistent with
(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 engineering principles, user operational requirements, and marketplace demands;
(3) encourage competition and provide services to the largest feasible number of users; or
(4) increase interservice sharing opportunities between private mobile services and other services.
(b) Advisory coordinating committees
(1) The Commission, in coordinating the assignment of frequencies to stations in the private mobile services and in the fixed services (as defined by the Commission by rule), shall have authority to utilize assistance furnished by advisory coordinating committees consisting of individuals who are not officers or employees of the Federal Government.
(2) The authority of the Commission established in this subsection shall not be subject to or affected by the provisions of part III of title 5 or
(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 assistance to the Commission under this subsection shall not be subject to the provisions of the Federal Advisory Committee Act.
(c) Regulatory treatment of mobile services
(1) Common carrier treatment of commercial mobile services
(A) A person engaged in the provision of a service that is a commercial mobile service shall, insofar as such person is so engaged, be treated as a common carrier for purposes of this chapter, except for such provisions of subchapter II of this chapter as the Commission may specify by regulation as inapplicable to that service or person. In prescribing or amending any such regulation, the Commission may not specify any provision of
(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 commercial mobile service, the Commission shall order a common carrier to establish physical connections with such service pursuant to the provisions of
(C) The Commission shall review competitive market conditions with respect to commercial mobile services and shall include in its annual report an analysis of those conditions. Such analysis shall include an identification of the number of competitors 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 additional providers or classes of providers in those services would be likely to enhance competition. As a part of making a determination with respect to the public interest under subparagraph (A)(iii), the Commission shall consider whether the proposed regulation (or amendment thereof) will promote competitive market conditions, including the extent to which such regulation (or amendment) will enhance competition among providers of commercial mobile services. If the Commission determines that such regulation (or amendment) will promote competition 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 August 10, 1993, complete a rulemaking 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 chapter. A common carrier (other than a person that was treated as a provider of a private land mobile service prior to August 10, 1993) shall not provide any dispatch service on any frequency allocated for common carrier service, except to the extent such dispatch service is provided on stations licensed in the domestic 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 Commission determines that such termination will serve the public interest.
(3) State preemption
(A) Notwithstanding
(i) market conditions with respect to such services fail to protect subscribers adequately from unjust and unreasonable 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 public comment in response to such petition, and shall, within 9 months after the date of its submission, grant or deny such petition. If the Commission grants such petition, the Commission shall authorize the State to exercise under State law such authority over rates, for such periods of time, as the Commission deems necessary to ensure that such rates are just and reasonable 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 August 10, 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 existing regulation shall, notwithstanding subparagraph (A), remain in effect until the Commission completes all action (including any reconsideration) on such petition. The Commission shall review such petition in accordance with the procedures established in such subparagraph, shall complete all action (including any reconsideration) within 12 months after such petition 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 authorize 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 reasonable 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 discriminatory. 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 satellite corporation
Nothing in this subsection shall be construed to alter or affect the regulatory treatment required by title IV of the Communications Satellite Act of 1962 [
(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 petition for waiver filed within 6 months after August 10, 1993, may waive the application of
(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
(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations
(i) The regulation of the placement, construction, and modification of personal wireless service facilities 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 prohibiting the provision of personal wireless services.
(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 instrumentality, 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 evidence contained in a written record.
(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.
(v) Any person adversely affected by any final action 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 action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely 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 services, 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 licenses, but does not mean the provision of direct-to-home satellite services (as defined in
(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 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 Commission shall prescribe regulations to afford subscribers unblocked access to the provider of telephone toll services of the subscribers' choice through the use of a carrier identification code assigned to such provider or other mechanism. The requirements for unblocking shall not apply to mobile satellite services 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
(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) of this section; and
(3) the term "private mobile service" means any mobile service (as defined in
(June 19, 1934, ch. 652, title III, §332, formerly §331, as added
References in Text
Provisions of part III of title 5, referred to in subsec. (b)(2), are classified to
The Federal Advisory Committee Act, referred to in subsec. (b)(4), is
The Communications Satellite Act of 1962, referred to in subsec. (c)(4), is
The Omnibus Budget Reconciliation Act of 1993, referred to in subsec. (c)(6), is
Codification
In subsec. (b)(2), "
Amendments
1996—Subsec. (c)(7).
Subsec. (c)(8).
Subsec. (d)(1), (3).
1993—
Effective Date of 1993 Amendment
Section 6002(c) of
"(1)
"(2)
"(A) section 332(c)(3)(A) of the Communications Act of 1934 [subsec. (c)(3)(A) of this section], as amended by such subsection, 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 enactment, 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 [subsec. (c)(6) of this section], be treated as a private mobile service until 3 years after such date of enactment."
Availability of Property
Section 704(c) of
Transitional Rulemaking for Mobile Service Providers
Section 6002(d)(3) of
"(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) [amending this section and
"(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 terminations 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 services;
"(C) shall issue such other regulations as are necessary to implement the amendments made by subsection (b)(2); and
"(D) shall include, in such regulations, modifications, and terminations, such provisions as are necessary to provide for an orderly transition."
Section Referred to in Other Sections
This section is referred to in
§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 chapter or operated by the United States Government.
(June 19, 1934, ch. 652, title III, §333, as added
§334. Limitation on revision of equal employment opportunity regulations
(a) Limitation
Except as specifically provided in this section, the Commission shall not revise—
(1) the regulations concerning equal employment opportunity 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 report pertinent employment data to the Commission.
(b) Midterm review
The Commission shall revise the regulations described in subsection (a) of this section to require a midterm review of television broadcast station licensees' employment practices and to require the Commission to inform such licensees of necessary improvements in recruitment practices identified as a consequence of such review.
(c) Authority to make technical revisions
The Commission may revise the regulations described in subsection (a) of this section to make nonsubstantive technical or clerical revisions in such regulations as necessary to reflect changes in technology, terminology, or Commission organization.
(June 19, 1934, ch. 652, title III, §334, as added
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
§335. Direct broadcast satellite service obligations
(a) Proceeding required to review DBS responsibilities
The Commission shall, within 180 days after October 5, 1992, initiate a rulemaking proceeding to impose, on providers of direct broadcast satellite service, public interest or other requirements for providing video programming. Any regulations prescribed pursuant to such rulemaking shall, at a minimum, apply the access to broadcast time requirement of
(b) Carriage obligations for noncommercial, educational, and informational programming
(1) Channel capacity required
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 reserve 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 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 programming 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 broadcast satellite service shall not exercise any editorial control over any video programming provided pursuant to this subsection.
(4) Limitations
In determining reasonable prices under paragraph (3)—
(A) the Commission shall take into account the nonprofit character of the programming provider and any Federal funds used to support such programming;
(B) the Commission shall not permit such prices to exceed, for any channel made available under this subsection, 50 percent of the total direct costs of making such channel available; and
(C) in the calculation of total direct costs, the Commission shall exclude—
(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 obtained by making such channel available to a commercial 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 number of channels (as specified by Commission regulation) 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 supplier" includes any qualified noncommercial educational television station, other public telecommunications entities, and public or private educational institutions.
(June 19, 1934, ch. 652, title III, §335, as added
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
§336. Broadcast spectrum flexibility
(a) Commission action
If the Commission determines to issue additional licenses for advanced television services, the Commission—
(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 construct 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 interest, convenience, and necessity.
(b) Contents of regulations
In prescribing the regulations required by subsection (a) of this section, 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 television broadcasts, that the Commission may require using such frequencies;
(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
(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 necessity.
(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 Commission shall, as a condition of such license, require that either the additional license or the original license held by the licensee be surrendered 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 necessity. 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 television 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 license.
(e) Fees
(1) Services to which fees apply
If the regulations prescribed pursuant to subsection (a) of this section permit a licensee to offer ancillary or supplementary services on a designated frequency—
(A) for which the payment of a subscription fee is required in order to receive such services, or
(B) for which the licensee directly or indirectly receives compensation from a third party in return for transmitting 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 objectives described in subparagraphs (A) and (B) of paragraph (2).
(2) Collection of fees
The program required by paragraph (1) shall—
(A) be designed (i) to recover for the public a portion of the value of the public spectrum resource made available for such commercial use, and (ii) to avoid unjust enrichment through the method employed to permit such uses of that resource;
(B) recover for the public an amount that, to the extent 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
(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 subparagraph (B), all proceeds obtained pursuant to the regulations required by this subsection shall be deposited in the Treasury in accordance with
(B) Retention of revenues
Notwithstanding subparagraph (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 television services. Such offsetting collections shall be available for obligation subject to the terms and conditions of the receiving appropriations account, and shall be deposited in such accounts on a quarterly basis.
(4) Report
Within 5 years after February 8, 1996, the Commission shall report to the Congress on the implementation of the program required by this subsection, and shall annually thereafter advise the Congress on the amounts collected pursuant to such program.
(f) Preservation of low-power community television broadcasting
(1) Creation of class A licenses
(A) Rulemaking required
Within 120 days after November 29, 1999, the Commission shall prescribe regulations to establish a class A television license to be available to licensees of qualifying low-power television stations. 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 November 29, 1999, the Commission shall send a notice to the licensees of all low-power television licenses that describes the requirements for class A designation. Within 60 days after November 29, 1999, 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
Consistent 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 Commission 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 parameters 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 regulations (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 December 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 awarded a construction permit to maximize or significantly enhance 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 accordance 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 November 29, 1999—
(I) such station broadcast a minimum of 18 hours per day;
(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 programming produced within the market area served by such group; and
(III) such station was in compliance with the Commission's requirements applicable to low-power television stations; and
(ii) from and after the date of its application for a class A license, the station is in compliance with the Commission's operating rules for full-power television stations; or
(B) the Commission determines that the public interest, 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 November 29, 1999, shall be disqualified for a class A license based on common ownership with any other medium of mass communication.
(4) Issuance of licenses for advanced television services to television translator stations and qualifying low-power television stations
The Commission is not required 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 service 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 Commission. A licensee of a low-power television station or television 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 subsection preempts or otherwise affects
(6) Interim qualification
(A) Stations operating within certain bandwidth
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 channel within the core spectrum (as such term is defined in MM Docket No. 87–286, February 17, 1998), the Commission 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 within the core spectrum that includes any of the 175 additional channels referenced in paragraph 45 of its February 23, 1998, Memorandum Opinion and Order on Reconsideration of the Sixth Report and Order (MM Docket No. 87–268). Within 18 months after November 29, 1999, the Commission shall identify by channel, location, and applicable 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 Protection Act of 1999 [November 29, 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 transmitting in analog format; or
(ii)(I) the digital television service areas provided in the DTV Table of Allotments; (II) the areas protected in the Commission's digital television regulations (47 CFR 73.622(e) and (f)); (III) the digital television service areas of stations subsequently granted by the Commission prior to the filing of a class A application; and (IV) stations seeking to maximize power under the Commission's rules, if such station has complied with the notification requirements in paragraph (1)(D);
(B) interference within the protected contour of any low-power television station or low-power television translator station that—
(i) was licensed prior to the date on which the application 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 section 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 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 Commission first issues additional licenses for advanced television services, the Commission shall conduct an evaluation of the advanced television services program. Such evaluation shall include—
(1) an assessment of the willingness of consumers to purchase 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) Definitions
As used in this section:
(1) Advanced television services
The term "advanced television services" means television services provided using digital or other advanced technology as further defined in the opinion, report, and order of the Commission entitled "Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service", MM Docket 87–268, adopted September 17, 1992, and successor proceedings.
(2) Designated frequencies
The term "designated frequency" means each of the frequencies designated by the Commission for licenses for advanced television services.
(3) High definition television
The term "high definition television" refers to systems that offer approximately twice the vertical and horizontal resolution of receivers generally available on February 8, 1996, as further defined in the proceedings described in paragraph (1) of this subsection.
(June 19, 1934, ch. 652, title III, §336, as added
Amendments
1999—Subsecs. (f) to (h).
Congressional Findings Regarding Low-Power Broadcasters
"(1) Since the creation of low-power television licenses by the Federal Communications Commission, a small number of license holders have operated their stations in a manner beneficial to the public good providing broadcasting to their communities that would not otherwise be available.
"(2) These low-power broadcasters have operated their stations in a manner consistent with the programming objectives and hours of operation of full-power broadcasters providing worthwhile services to their respective communities while under severe license limitations compared to their full-power counterparts.
"(3) License limitations, particularly the temporary nature of the license, have blocked many low-power broadcasters from having access to capital, and have severely hampered their ability to continue to provide quality broadcasting, programming, or improvements.
"(4) The passage of the Telecommunications Act of 1996 [
"(5) It is in the public interest to promote diversity in television programming such as that currently provided by low-power television stations to foreign-language communities."
Executive Order No. 13038
Ex. Ord. No. 13038, Mar. 11, 1997, 62 F.R. 12065, as amended by Ex. Ord. No. 13062, §5, Sept. 29, 1997, 62 F.R. 51756; Ex. Ord. No. 13065, Oct. 22, 1997, 62 F.R. 55329; Ex. Ord. No. 13081, Apr. 30, 1998, 63 F.R. 24385; Ex. Ord. No. 13102, Sept. 25, 1998, 63 F.R. 52125, which established the Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters, was revoked by Ex. Ord. No. 13138, §3(b), Sept. 30, 1999, 64 F.R. 53880, set out as a note under section 14 of the Federal Advisory Committee Act in the Appendix to Title 5, Government Organization and Employees.
§337. Allocation and assignment of new public safety services licenses and commercial licenses
(a) In general
Not later than January 1, 1998, the Commission shall allocate the electromagnetic spectrum between 746 megahertz and 806 megahertz, inclusive, as follows:
(1) 24 megahertz of that spectrum for public safety services according to the terms and conditions established by the Commission, in consultation with the Secretary of Commerce and the Attorney General; and
(2) 36 megahertz of that spectrum for commercial use to be assigned by competitive bidding pursuant to
(b) Assignment
The Commission shall commence assignment of licenses for public safety services created pursuant to subsection (a) of this section no later than September 30, 1998.
(c) Licensing of unused frequencies for public safety services
(1) Use of unused channels for public safety services
Upon application by an entity seeking to provide public safety services, the Commission shall waive any requirement of this chapter or its regulations implementing this chapter (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 application shall be granted under this subsection if the Commission finds that—
(A) no other spectrum allocated to public safety services is immediately available to satisfy the requested public safety service use;
(B) the requested use is technically feasible without causing harmful interference to other spectrum users entitled to protection from such interference under the Commission's regulations;
(C) the use of the unassigned frequency for the provision of public safety services is consistent with other allocations 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
(E) granting such application is consistent with the public interest.
(2) Applicability
Paragraph (1) shall apply to any application to provide public safety services that is pending or filed on or after August 5, 1997.
(d) Conditions on licenses
In establishing service rules with respect to licenses granted pursuant to this section, the Commission—
(1) shall establish interference limits at the boundaries of the spectrum block and service area;
(2) shall establish any additional technical restrictions necessary to protect full-service analog television service and digital television service during a transition to digital television service;
(3) may permit public safety services licensees and commercial 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) of this section shall not be subject to harmful interference from television broadcast licensees.
(e) Removal and relocation of incumbent broadcast licensees
(1) Channels 60 to 69
Any person who holds a television broadcast license to operate between 746 and 806 megahertz may not operate at that frequency after the date on which the digital television service transition period terminates, as determined by the Commission.
(2) Incumbent qualifying low-power stations
After making any allocation or assignment under this section, the Commission shall seek to assure, consistent with the Commission's plan for allotments for digital television service, that each qualifying low-power television station is assigned a frequency below 746 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 authorized by a governmental entity whose primary mission 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 station is a qualifying low-power television station if, during the 90 days preceding August 5, 1997—
(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
(C) such station was in compliance with the requirements applicable to low-power television stations.
(June 19, 1934, ch. 652, title III, §337, as added
Amendments
1999—Subsec. (b).
"(1) commence assignment of the licenses for public safety services created pursuant to subsection (a) of this section no later than September 30, 1998; and".
Subsec. (b)(2).
Competitive Bidding Process for Commercial Licenses for Assigned Frequencies
"(a)
"(2) Commencing on the date of the enactment of this Act [Nov. 29, 1999], the Federal Communications Commission shall initiate the competitive bidding process previously required under section 337(b)(2) of the Communications Act of 1934 (as repealed by the amendment made by paragraph (1) [
"(3) The Federal Communications Commission shall conduct the competitive bidding process described in paragraph (2) in a manner that ensures that all proceeds of such bidding are deposited in accordance with section 309(j)(8) of the Communications Act of 1934 (
"(4)(A) To expedite the assignment by competitive bidding of the frequencies identified in section 337(a)(2) of the Communications Act of 1934 (
"(B)
"(5) Notwithstanding section 309(b) of the Communications Act of 1934 (
"(6) Notwithstanding section 309(d)(1) of the Communications Act of 1934 (
"(b)
"(A) set forth the anticipated schedule (including specific dates) for—
"(i) preparing and conducting the competitive bidding process required by subsection (a); and
"(ii) depositing the receipts of the competitive bidding process;
"(B) set forth each significant milestone in the rulemaking process with respect to the competitive bidding process; and
"(C) include an explanation of the effect of each requirement in subsection (a) on the schedule for the competitive bidding process and any post-bidding activities (including the deposit of receipts) when compared with the schedule for the competitive bidding and any post-bidding activities (including the deposit of receipts) that would otherwise have occurred under section 337(b)(2) of the Communications Act of 1934 (
"(2) Not later than 60 days after the date of the enactment of this Act [Nov. 29, 1999], the Federal Communications Commission shall submit to the appropriate congressional committees a report which shall set forth for each spectrum auction held by the Commission since January 1, 1998, information on—
"(A) the time required for each stage of preparation for the auction;
"(B) the date of the commencement and of the completion of the auction;
"(C) the time which elapsed between the date of the completion of the auction and the date of the first deposit of receipts from the auction in the Treasury; and
"(D) the amounts, summarized by month, of all subsequent deposits in a Treasury receipt account from the auction.
"(3) Not later than October 31, 2000, the Federal Communications Commission shall submit to the appropriate congressional committees a report which shall—
"(A) describe the course of the competitive bidding process required by subsection (a) through September 30, 2000, including the amount of any receipts from the competitive bidding process deposited in the Treasury as of September 30, 2000; and
"(B) if the course of the competitive bidding process has included any deviations from the schedule set forth under paragraph (1)(A), an explanation for such deviations from the schedule.
"(4) Each report required by this subsection shall be prepared by the agency concerned without influence of any other Federal department or agency.
"(5) In this subsection, the term "appropriate congressional committees" means the following:
"(A) The Committees on Appropriations, the Budget, and Commerce, Science, and Transportation of the Senate.
"(B) The Committees on Appropriations, the Budget, and Commerce of the House of Representatives.
"(c)
"(d)
Section Referred to in Other Sections
This section is referred to in
§338. Carriage of local television signals by satellite carriers
(a) Carriage obligations
(1) In general
Subject to the limitations of paragraph (2), each satellite carrier providing, under
(2) Remedies for failure to carry
The remedies for any failure to meet the obligations under this subsection shall be available exclusively under
(3) Effective date
No satellite carrier shall be required to carry local television broadcast stations under paragraph (1) until January 1, 2002.
(b) Good signal required
(1) Costs
A television broadcast station asserting its right to carriage under subsection (a) of this section 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 another 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 subsection (g) of this section shall set forth the obligations necessary to carry out this subsection.
(c) Duplication not required
(1) Commercial stations
Notwithstanding subsection (a) of this section, a satellite carrier shall not be required to carry upon request the signal of any local commercial television broadcast station that substantially duplicates the signal of another local commercial television broadcast station which is secondarily transmitted by the satellite carrier within the same local market, or to carry upon request the signals of more than one local commercial television broadcast station in a single local market that is affiliated with a particular television network unless 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 this section 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
(d) Channel positioning
No satellite carrier shall be required to provide the signal of a local television broadcast station to subscribers in that station's local market on any particular channel number or to provide the signals in any particular order, except that the satellite carrier shall retransmit the signal of the local television broadcast stations to subscribers in the stations' local market on contiguous channels and provide access to such station's signals at a nondiscriminatory price and in a nondiscriminatory manner 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 consideration 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 section, 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 carrier 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 believing that the satellite carrier failed to comply with such obligations. 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 review 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 afford the satellite carrier against which a complaint is filed under paragraph (1) an opportunity to present data and arguments 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 under paragraph (1), the Commission shall determine whether the satellite carrier has met its obligations under subsections (b) through (e) of this section. If the Commission determines that the satellite carrier has failed to meet such obligations, the Commission shall order the satellite carrier to take appropriate remedial action. If the Commission determines that the satellite carrier has fully met the requirements of such subsections, the Commission shall dismiss the complaint.
(g) Regulations by Commission
Within 1 year after November 29, 1999, the Commission shall issue regulations implementing this section following a rulemaking proceeding. The regulations prescribed under this section shall include requirements on satellite carriers that are comparable to the requirements on cable operators under sections 534(b)(3) and (4) and 535(g)(1) and (2) of this title.
(h) 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) Local receive facility
The term "local receive facility" means the reception point in each local market which a satellite carrier designates for delivery of the signal of the station for purposes of retransmission.
(3) Local market
The term "local market" has the meaning given that term under
(4) Satellite carrier
The term "satellite carrier" has the meaning given such term under
(5) Secondary transmission
The term "secondary transmission" has the meaning given such term in
(6) Subscriber
The term "subscriber" has the meaning given that term under
(7) Television broadcast station
The term "television broadcast station" has the meaning given such term in
(June 19, 1934, ch. 652, title III, §338, as added
Rural Local Television Signals
"SEC. 2001. SHORT TITLE.
"This title may be cited as the 'Rural Local Broadcast Signal Act'.
"SEC. 2002. LOCAL TELEVISION SERVICE IN UNSERVED AND UNDERSERVED MARKETS.
"(a)
"(b)
"(1)
"(2)
"(3)
"(c)
"(1) an analysis of the extent to which local signals are being provided by direct-to-home satellite television providers and by other multichannel video program distributors;
"(2) an enumeration of the technical, economic, and other impediments each type of multichannel video programming distributor has encountered; and
"(3) recommendations for specific measures to facilitate the provision of local signals to subscribers in unserved and underserved markets by direct-to-home satellite television providers and by other distributors of multichannel video programming service."
Section Referred to in Other Sections
This section is referred to in
§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
(B) Additional service
In addition to signals provided under subparagraph (A), any satellite carrier may also provide service under the statutory license of
(2) Penalty for violation
Any satellite carrier that knowingly and willfully provides the signals of television stations to subscribers in violation of this subsection shall be liable for a forfeiture penalty under
(b) Extension of network nonduplication, syndicated exclusivity, and sports blackout to satellite retransmission
(1) Extension of protections
Within 45 days after November 29, 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 retransmission of the signals of nationally distributed superstations by satellite carriers to subscribers; and
(B) to the extent technically feasible and not economically prohibitive, apply sports blackout protection (47 CFR 76.67) to the retransmission of the signals of network stations by satellite carriers to subscribers.
(2) Deadline for action
The Commission shall complete all actions necessary to prescribe regulations required by this section so that the regulations shall become effective within 1 year after November 29, 1999.
(c) Eligibility for retransmission
(1) Signal standard for satellite carrier purposes
For the purposes of identifying an unserved household under
(A) recommend modifications to the Grade B intensity standard for analog signals set forth in section 73.683(a) of its regulations (47 CFR 73.683(a)), or recommend alternative standards or factors for purposes of determining such eligibility; and
(B) make a further recommendation relating to an appropriate standard for digital signals.
(2) Waivers
A subscriber who is denied the retransmission of a signal of a network station under
(3) Establishment of improved predictive model required
Within 180 days after November 29, 1999, the Commission shall take all actions necessary, including any reconsideration, to develop and prescribe by rule a point-to-point predictive model for reliably and presumptively determining the ability of individual locations to receive signals in accordance with the signal intensity standard in effect under
(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 that meets the signal intensity standard in effect under
(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 otherwise agree, the costs of conducting the test under this paragraph shall be borne by the satellite carrier, if the station's signal meets or exceeds the signal intensity standard in effect under
(C) Avoidance of undue burden
Commission regulations prescribed under this paragraph shall seek to avoid any undue burden on any party.
(d) Definitions
For the purposes of this section:
(1) Local market
The term "local market" has the meaning given that term under
(2) Nationally distributed superstation
The term "nationally distributed superstation" means a television broadcast station, licensed by the Commission, that—
(A) is not owned or operated by or affiliated with a television network that, as of January 1, 1995, offered interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees 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 satellite carrier under the statutory license of
(3) Network station
The term "network station" has the meaning given such term under
(4) Satellite carrier
The term "satellite carrier" has the meaning given such term under
(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.
(June 19, 1934, ch. 652, title III, §339, as added
Section Referred to in Other Sections
This section is referred to in
Part II—Radio Equipment and Radio Operators On Board Ship
Part Referred to in Other Sections
This part is referred to in
§351. Ship radio stations and operations
(a) Except as provided in section 352 hereof it shall be unlawful—
(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 chapter.
(A) Passenger ships irrespective of size and cargo ships of one thousand six hundred gross tons and upward shall be equipped with a radio-telegraph station complying with the provisions 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 radio-telegraph station complying with the provisions 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 hundred 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 approved 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 neither the master, the owner, nor the charterer (if any) has control.
(June 19, 1934, ch. 652, title III, §351, as added May 20, 1937, ch. 229, §10(b),
Amendments
1965—Subsec. (a).
1954—Subsec. (a)(1). Act Aug. 13, 1954, broadened coverage so as to extend to vessels over 500 tons rather than 1,600 tons.
Subsec. (a)(2). Act Aug. 13, 1954, broadened coverage so as to extend to any United States flag vessel of 1,600 gross tons or over rather than any passenger vessel of 5,000 gross tons or over.
Effective Date
Section 16 of act May 20, 1937, provided that: "This Act [enacting this part, amending
Joint Studies of Need for Safety Devices on Certain Cargo Ships; Report
Act Aug. 3, 1956, ch. 913,
Section Referred to in Other Sections
This section is referred to in
§352. Exemptions
(a) Vessels excepted
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 Regulations 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;
(6) A ship navigating solely on any bays, sounds, rivers, or protected 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 America 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) Radio station unreasonable or unnecessary
Except for nuclear ships, the Commission may, if it considers that the route or the conditions of the voyage or other circumstances are such as to render a radio station unreasonable or unnecessary for the purposes of this part, exempt from the provisions 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, alternatively, 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) Unforeseeable equipment failures
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) of this section shall not apply: Provided, That exemption of the ship is found to be reasonable or necessary in accordance with subsection (b) of this section to permit the ship to proceed to a port where the equipment deficiency may be remedied.
(d) Radio direction finding apparatus unreasonable or unnecessary
Except for nuclear ships, and except for ships of five thousand gross tons and upward which are subject to the Safety Convention, 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 or conditions of the voyage or other circumstances are such as to render such apparatus unreasonable or unnecessary.
(June 19, 1934, ch. 652, title III, §352, as added May 20, 1937, ch. 229, §10(b),
References in Text
Panama Canal Company, referred to in subsec. (a)(2), deemed to refer to Panama Canal Commission, see
Amendments
1981—Subsec. (a)(2).
1965—
Subsec. (b).
Subsec. (d).
1954—Subsec. (a)(3). Act Aug. 13, 1954, §1(b), substituted "any Safety Convention in force between the United States and that country" for "the Safety Convention and" and inserted at end "or which ship is not subject to the radio provisions of any such Convention".
Subsec. (c). Act Aug. 13, 1954, §1(c), added subsec. (c).
1950—Subsec. (a)(2). Act Sept. 26, 1950, substituted "Panama Canal Company" for "Panama Railroad Company".
Effective Date
Section effective May 20, 1937, unless deferred by the Commission, see section 16 of act May 20, 1937, set out as a note under
Transfer of Functions
For transfer of functions of United States Maritime Commission, see Reorg. Plan No. 21 of 1950 and Reorg. Plan No. 7 of 1961, set out in the Appendix to Title 5, Government Organization and Employees.
Section Referred to in Other Sections
This section is referred to in section 351 this title; title 46 section 14305.
§353. Radio equipment and operators
(a) Two radio officers required
Each cargo ship which in accordance with this part is equipped with a radiotelegraph station and which is not equipped with a radiotelegraph auto alarm, and each passenger ship required by this part to be equipped with a radiotelegraph station, shall, for safety purposes, carry at least two radio officers.
(b) One radio officer required
A cargo ship which in accordance with this part is equipped with a radiotelegraph station, which is equipped with a radiotelegraph auto alarm, shall, for safety purposes, carry at least one radio officer who shall have had at least six months' previous service in the aggregate as a radio officer in a station on board a ship or ships of the United States.
(c) Required watches
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 officer.
(d) Hours of watch
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) Operational status of auto alarms in open sea
On all ships of the United States equipped with a radiotelegraph 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.
(June 19, 1934, ch. 652, title III, §353, as added May 20, 1937, ch. 229, §10(b),
Amendments
1965—
1954—Act Aug. 13, 1954, amended section to make clear that it applies only to ships equipped with a radiotelegraph installation, not those fitted with a radiotelephone installation.
1943—Subsec. (b). Act June 22, 1943, substituted "the termination of such emergency or such earlier date as Congress by concurrent resolution may designate" for "June 30, 1943".
1941—Subsec. (b). Act July 8, 1941, inserted exception respecting national emergency.
Partial Repeal Effective July 1, 1948
Acts July 8, 1941, and June 22, 1943, which amended subsec. (b) of this section by adding the clause authorizing suspension or modification of the service requirement during the emergency, were repealed, effective July 1, 1948, by act July 25, 1947, which provided that such acts should remain in full force and effect until such date.
Effective Date
Section effective May 20, 1937, unless deferred by the Commission, see section 16 of act May 20, 1937, set out as a note under
Approval of Operators by Secretary of Navy During War
Act Dec. 17, 1941, ch. 588,
§353a. Operators and watches on 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.
(June 19, 1934, ch. 652, title III, §354, as added Aug. 13, 1954, ch. 729, §2(b),
Amendments
1965—
§354. Technical requirements of equipment on radiotelegraph equipped ships
The radiotelegraph station and the radio direction finding apparatus required by
(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 harmful interference from extraneous mechanical or other noise will be 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 radiotelegraph 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 radiotelegraph 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 radiotelegraph 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 classes 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 hundred 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 conditions 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 operation 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 apparatus 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 radiotelegraph frequencies assigned by the radio regulations annexed to the International Telecommunication Convention in force for the purposes 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.
(June 19, 1934, ch. 652, title III, §355, formerly §354, as added May 20, 1937, ch. 229, §10(b),
Amendments
1965—
Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
Subsec. (h).
Subsec. (i).
1954—Act Aug. 13, 1954, §2(a)(1), amended credit to section by changing section number from "354" to "355" of act June 19, 1934.
Subsec. (a). Act Aug. 13, 1954, §2(c), provided for a "reserve radiotelegraph installation" instead of merely a "reserve installation".
Effective Date
Section effective May 20, 1937, unless deferred by the Commission, see section 16 of act May 20, 1937, set out as a note under
Transfer of Functions
Coast Guard transferred to Department of Transportation, and functions, powers, and duties relating to Coast Guard of Secretary of the Treasury and of all other officers and offices of Department of the Treasury transferred to Secretary of Transportation by
For transfer of functions of other officers, employees, and agencies of Department of the Treasury, with certain exceptions, to Secretary of the Treasury with power to delegate, see Reorg. Plan No. 26 of 1950, §§1, 2, eff. July 31, 1950, 15 F.R. 4935,
"Commandant of the Coast Guard" substituted in subsec. (b) for "Bureau of Marine Inspection and Navigation, Department of Commerce" on authority of Reorg. Plan No. 3 of 1946, §§101–104, set out in the Appendix to Title 5.
Section Referred to in Other Sections
This section is referred to in
§354a. Technical requirements of equipment on radiotelephone 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 radiotelegraph station prescribed by
(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 reception 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 transmitting and receiving on the frequencies, and using the classes of emission, designated by the Commission pursuant to law for the purposes of distress and safety of navigation.
(c) The radiotelephone installation shall have a minimum normal 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 circumstances over this range.
(d) There shall be available at all times a main source of electrical energy sufficient to operate the installation over the normal range required by subsection (c) of this section. If batteries are provided they shall have sufficient capacity to operate the transmitter and receiver for at least six continuous hours under normal working 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 situated.
(June 19, 1934, ch. 652, title III, §356, as added Aug. 13, 1954, ch. 729, §2(d),
Amendments
1965—
Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Section Referred to in Other Sections
This section is referred to in title 46 section 14305.
§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 regulation 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 apparatus.
(June 19, 1934, ch. 652, title III, §357, formerly §355, as added May 20, 1937, ch. 229, §10(b),
Amendments
1965—
1954—Act Aug. 13, 1954, §2(a)(1), amended credit to section by changing section number from "355" to "357" of act June 19, 1934.
Act Aug. 13, 1954, §2(e), provided that lifeboats be equipped with "radio equipment" rather than a "radio installation" and defined "radio equipment" as including portable as well as nonportable apparatus.
Effective Date
Section effective May 20, 1937, unless deferred by the Commission, see section 16 of act May 20, 1937, set out as a note under
§356. Approval of installations by Commission
Insofar as is necessary to carry out the purposes and requirements 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 or of equipment 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 determined to be necessary to supplement that specified in this part, 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.
(June 19, 1934, ch. 652, title III, §358, formerly §356, as added May 20, 1937, ch. 229, §10(b),
References in Text
This part, referred to in text, commences with
Amendments
1994—
Effective Date
Section effective May 20, 1937, see section 16 of act May 20, 1937, set out as a note under
§357. Safety information
(a) Transmission of information concerning safety at sea
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 danger to navigation, or encounters subfreezing air temperatures associated with gale force winds causing severe ice accretion on superstructures, or winds of force 10 or above on the Beaufort scale for which no storm warning has been received, shall cause to be transmitted all pertinent information relating thereto to ships in the vicinity 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) Charges for transmission of safety information
No charge shall be made by any ship or station in the mobile service of the United States for the transmission, receipt, or relay of the information designated in subsection (a) of this section originating on a ship of the United States or of a foreign country.
(c) Reimbursement by Commission
The transmission by any ship of the United States, made in compliance with subsection (a) of this section, to any station which imposes a charge for the reception, relay, or forwarding of the required information, shall be free of cost to the ship concerned and any communication 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) Charges for transmission of distress messages
No charge shall be made by any ship or station in the mobile service of the United States for the transmission of distress messages and replies thereto in connection with situations involving the safety of life and property at sea.
(e) Free services
Notwithstanding any other provision of law, any station or carrier may render free service in connection with situations involving the safety of life and property, including hydrographic reports, 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.
(June 19, 1934, ch. 652, title III, §359, formerly §357, as added May 20, 1937, ch. 229, §10(b),
Amendments
1965—Subsec. (a).
Effective Date
Section effective May 20, 1937, see section 16 of act May 20, 1937, set out as a note under
§358. Master's control over operations
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 international 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.
(June 19, 1934, ch. 652, title III, §360, formerly §358, as added May 20, 1937, ch. 229, §10(b),
Effective Date
Section effective May 20, 1937, see section 16 of act May 20, 1937, set out as a note under
§359. Certificates of compliance; issuance, modification, and cancellation
(a) Each vessel of the United States to which the Safety Convention 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 board an appropriate certificate as prescribed by the Safety Convention.
(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 certificates 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 request of the Commission made after proper inspection or determination of the facts. If the holder of a certificate violates the radio provisions of the Safety Convention or the provisions of this chapter, or the rules, regulations, or conditions prescribed by the Commission, and if the effective administration of the Safety Convention or of this part so requires, the Commission, after hearing in accordance with law, is authorized to modify or cancel a certificate which it has issued, or to request the modification or cancellation of a certificate which has been issued by another agency upon the Commission'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 certificate in accordance therewith.
(June 19, 1934, ch. 652, title III, §361, formerly §359, as added May 20, 1937, ch. 229, §10(b),
References in Text
This part, referred to in subsec. (b), commences with
Amendments
1965—Subsec. (b).
1954—Act Aug. 13, 1954, §2(a)(1), amended credit to section by changing section number from "359" to "361" of act June 19, 1934.
Subsec. (b). Act Aug. 13, 1954, §2(f), amended subsection generally to provide, among other changes, that certificates of compliance be issued "upon request to any vessel" and to provide that safety radiotelegraph certificates and safety radiotelephony certificates and certain exemption certificates be issued by the Federal Communications Commission.
Effective Date
Section effective May 20, 1937, see section 16 of act May 20, 1937, set out as a note under
Transfer of Functions
Coast Guard transferred to Department of Transportation, and functions, powers, and duties relating to Coast Guard of Secretary of the Treasury and of all other officers and offices of Department of the Treasury transferred to Secretary of Transportation by
§360. Station licenses; inspection of equipment by Commission
(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 subchapter shall include particulars with reference to the items specifically required by this subchapter.
(b) Every ship of the United States that is subject to this part shall have the equipment and apparatus prescribed therein inspected at least once each year by the Commission or an entity designated by the Commission. If, after such inspection, the Commission is satisfied that all relevant provisions of this chapter and the station 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 Commission determines may be necessary to ensure compliance with the requirements of this chapter. 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 vessel's return to the United States.
(June 19, 1934, ch. 652, title III, §362, formerly §360, as added May 20, 1937, ch. 229, §10(b),
References in Text
This part, referred to in subsec. (b), commences with
Amendments
1996—Subsec. (b).
1962—Subsec. (b).
Effective Date
Section effective May 20, 1937, see section 16 of act May 20, 1937, set out as a note under
§361. Control by Commission; review of decisions
Nothing in this subchapter 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, installations, or exemptions from prescribed radio requirements shall be final, subject only to review in accordance with law.
(June 19, 1934, ch. 652, title III, §363, formerly §361, as added May 20, 1937, ch. 229, §10(b),
Effective Date
Section effective May 20, 1937, see section 16 of act May 20, 1937, set out as a note under
§362. Forfeitures; recovery
The following forfeitures shall apply to this part, in addition to the penalties and forfeitures provided by subchapter V of this chapter:
(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 pursuance thereof, shall forfeit to the United States the sum of $5,000, recoverable by way of suit or libel. Each such departure or attempted 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 chapter 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.
(June 19, 1934, ch. 652, title III, §364, formerly §362, as added May 20, 1937, ch. 229, §10(b),
References in Text
This part, referred to in text, commences with
Amendments
1989—Subsec. (a).
Subsec. (b).
Effective Date
Section effective May 20, 1937, see section 16 of act May 20, 1937, set out as a note under
Federal Rules of Civil Procedure
Admiralty and maritime rules of practice (which included libel procedures) were superseded, and civil and admiralty procedures in United States district courts were unified, effective July 1, 1966, see rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims, Title 28, Appendix, Judiciary and Judicial Procedure.
Cross References
Mode of recovery of forfeitures generally, see
§363. Automated ship distress and safety systems
Notwithstanding any provision of this chapter or any other provision 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 telegraphy 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 equipment required to implement the Global Maritime Distress and Safety System installed and operating in good working condition.
(June 19, 1934, ch. 652, title III, §365, as added
Part III—Radio Installations on Vessels Carrying Passengers for Hire
Part Referred to in Other Sections
This part is referred to in
§381. Vessels transporting more than six passengers for hire required to be equipped with radiotelephone
Except as provided in
(June 19, 1934, ch. 652, title III, §381, as added Aug. 6, 1956, ch. 973, §1,
Amendments
1994—
Effective Date
Section 4 of act Aug. 6, 1956, provided that: "The amendments made herein [enacting this part and amending
§382. Vessels excepted from radiotelephone 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 this subchapter, or in accordance with the radio requirements of the Safety Convention; and
(2) vessels of the United States belonging to and operated by the Government, and
(3) vessels navigating on the Great Lakes.
(June 19, 1934, ch. 652, title III, §382, as added Aug. 6, 1956, ch. 973, §1,
References in Text
Part II of this subchapter, referred to in par. (1), is classified to
Amendments
1996—Par. (2).
1994—
Effective Date
Section effective Mar. 1, 1957, see section 4 of act Aug. 6, 1956, set out as a note under
§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 conditions of the voyage, or other conditions or circumstances, are such as to render a radio installation unreasonable, unnecessary, or ineffective, for the purposes of this chapter.
(June 19, 1934, ch. 652, title III, §383, as added Aug. 6, 1956, ch. 973, §1,
Amendments
1994—
Effective Date
Section effective Mar. 1, 1957, see section 4 of act Aug. 6, 1956, set out as a note under
§384. Authority of Commission; operations, installations, and additional equipment
The Commission shall have authority with respect to any vessel subject to this part—
(1) to specify operating and technical conditions and characteristics including frequencies, emissions, power, communication 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 equipment 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;
(4) to prescribe such additional equipment as may be determined 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.
(June 19, 1934, ch. 652, title III, §384, as added Aug. 6, 1956, ch. 973, §1,
Amendments
1994—
Effective Date
Section effective Mar. 1, 1957, see section 4 of act Aug. 6, 1956, set out as a note under
§385. Inspections
The Commission or an entity designated by the Commission shall make such inspections as may be necessary to insure compliance with the requirements of this part. In accordance with such other provisions of law as apply to Government contracts, the Commission 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 inspection or certification.
(June 19, 1934, ch. 652, title III, §385, as added Aug. 6, 1956, ch. 973, §1,
Amendments
1996—
1994—
Effective Date
Section effective Mar. 1, 1957, see section 4 of act Aug. 6, 1956, set out as a note under
§386. Forfeitures
The following forfeitures shall apply to this part in addition to penalties and forfeitures provided by subchapter V of this chapter:
(a) Any vessel of the United States that is navigated in violation 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 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 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.
(June 19, 1934, ch. 652, title III, §386, as added Aug. 6, 1956, ch. 973, §1,
Amendments
1994—
1989—Subsec. (a).
Subsec. (b).
Effective Date
Section effective Mar. 1, 1957, see section 4 of act Aug. 6, 1956, set out as a note under
Federal Rules of Civil Procedure
Admiralty and maritime rules of practice (which included libel procedures) were superseded, and civil and admiralty procedures in United States district courts were unified, effective July 1, 1966, see rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims, Title 28, Appendix, Judiciary and Judicial Procedure.
Part IV—Assistance for Planning and Construction of Public Telecommunications Facilities; Telecommunications Demonstrations; Corporation for Public Broadcasting; General Provisions
Part Referred to in Other Sections
This part is referred to in title 40 App. section 214.
subpart a—assistance for planning and construction of public telecommunications facilities
§390. Declaration of purpose
The purpose of this subpart is to assist, through matching grants, in the planning and construction of public telecommunications facilities in order to achieve the following objectives: (1) extend delivery of public telecommunications services to as many citizens of the United States as possible by the most efficient and economical 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 television and radio stations to provide public telecommunications services to the public.
(June 19, 1934, ch. 652, title III, §390, as added
Amendments
1978—
1976—
1967—
Effective Date of 1978 Amendment
Section 403 of
Grants
Study of Educational and Instructional Broadcasting
Section Referred to in Other Sections
This section is referred to in
§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 Secretary 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 remain 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 appropriated under this subpart may be used by the Secretary to cover the cost of administering the provisions of this subpart.
(June 19, 1934, ch. 652, title III, §391, as added
Amendments
1992—
1988—
1986—
1981—
1978—
1976—
1973—
1972—
1969—
1967—
Effective Date of 1988 Amendment
Section 12 of
Effective Date of 1978 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§392. Grants for construction
(a) Applications for grants
For each project for the construction of public telecommunications facilities there shall be submitted to the Secretary an application 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 requirements and the projected costs of such facilities requirements. 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 public telecommunications entities; (D) a nonprofit foundation, corporation, institution, or association organized primarily for educational or cultural purposes; or (E) a State or local government (or any agency thereof), or a political or special purpose subdivision of a State;
(2) the operation of such public telecommunications facilities 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 services, and that the use of such public telecommunications facilities for purposes other than the provision of public telecommunications services will not interfere with the provision of such public telecommunications services as required in this part;
(5) the applicant has participated in comprehensive planning 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 coordination with State educational television and radio agencies, as appropriate; and
(6) the applicant will make the most efficient use of the grant.
(b) Amount of grant
Upon approving any application under this section with respect to any project for the construction of public telecommunications facilities, the Secretary shall make a grant to the applicant in an amount determined by the Secretary, except that such amount shall not exceed 75 percent of the amount determined by the Secretary to be the reasonable and necessary cost of such project.
(c) Information and assurances
The Secretary may provide such funds as the Secretary deems necessary for the planning of any project for which construction 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) of this section to receive construction assistance.
(d) Studies
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) Rules and regulations
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 applications for construction projects and relating to determining the amount of each grant for such projects.
(f) Minorities and women
In establishing criteria for grants pursuant to
(g) Recovering funds
If, within 10 years after completion of any project for construction 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) of this section; or
(2) such facilities cease to be used primarily for the provision 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 determined 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) Recordkeeping requirements
Each recipient of assistance under this subpart shall keep such records as may be reasonably necessary to enable the Secretary to carry out the functions of the Secretary under this subpart, including a complete and itemized inventory of all public telecommunications 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) Accessibility of records
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, documents, papers, and records of any recipient of assistance under this subpart that are pertinent to assistance received under this subpart.
(June 19, 1934, ch. 652, title III, §392, as added
Amendments
1981—Subsec. (a)(4).
Subsec. (g)(2).
1978—
1976—Subsec. (a)(1)(C).
Subsec. (d).
1967—Subsec. (a).
Subsec. (a)(1)(B).
Subsec. (a)(1)(D).
Subsec. (a)(1)(E).
Subsec. (a)(2) to (4).
Subsec. (a)(5).
Subsec. (b).
Subsec. (c).
Subsec. (d). Pub. 90–129, §103(d), inserted in cls. (2) and (3) "noncommercial" and "or noncommercial educational radio broadcasting facilities, as the case may be," before and after "educational television broadcasting facilities", respectively.
Subsec. (e).
Subsec. (f).
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1967 Amendment
Section 102 of
Administration of Grants
Section 103(b) of
"(1) The provisions of section 392(g) of the Communications Act of 1934 [subsec. (g) of this section], as added by subsection (a), shall apply to any grant made under section 392 of such Act [this section] before, on, or after the date of the enactment of this Act [Nov. 2, 1978]. Any authority and responsibilities of the Secretary of Health, Education, and Welfare regarding the administration of such grants are hereby transferred to the Secretary of Commerce.
"(2) Subject to the provisions of section 202 of the Budget and Accounting Procedures Act of 1950 (
"(A) the personnel employed in connection with or in support of, or as an integral part of the mission of, the functions transferred to the Secretary of Commerce from the Secretary of Health, Education, and Welfare by paragraph (1); and
"(B) the assets, liabilities, contracts, property, records, and unexpended balances of appropriations, allocations, and other funds employed, held, used, arising from, available for, or to be made available for, or in connection with, the functions described in subparagraph (A).
Unexpended funds transferred pursuant to this paragraph shall be used only for the purposes for which the funds originally were authorized and appropriated.
"(3) The Director of the Office of Management and Budget, in consultation with the Secretary of Commerce and the Secretary of Health, Education, and Welfare, shall—
"(A) make such determinations as may be necessary with regard to the transfer of the functions transferred to the Secretary of Commerce from the Secretary of Health, Education, and Welfare by paragraph (1); and
"(B) make such additional incidental dispositions of personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, allocations, and other funds employed, held, used, arising from, available for, or to be made available for, or in connection with, the functions described in subparagraph (A);
as the Director may deem necessary to accomplish the purposes of this Act [see Short Title of 1978 Amendment note set out under
Section Referred to in Other Sections
This section is referred to in
§392a. Repealed. Pub. L. 95–567, title II, §201, Nov. 2, 1978, 92 Stat. 2409
Section, act June 19, 1934, ch. 652, title III, §392A, as added June 5, 1976,
Effective Date of Repeal
Repeal effective Nov. 2, 1978, see section 403 of
§393. Criteria for approval and expenditures by Secretary
(a) Construction and planning grants
The Secretary, in consultation with the Corporation, public telecommunications entities, and as appropriate with others, shall establish 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 parties upon request.
(b) Basis for determination
The Secretary shall base determinations of whether to approve applications for grants under this subpart, and the amount of such grants, on criteria developed pursuant to subsection (a) of this section and designed to achieve—
(1) the provision of new telecommunications facilities to extend service to areas currently not receiving public telecommunications 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 services, including services to underserved audiences such as deaf and hearing impaired individuals and blind and visually impaired individuals.
(c) Noncommercial radio broadcast station facilities
Of the sums appropriated pursuant to
(June 19, 1934, ch. 652, title III, §393, as added
Amendments
1992—Subsec. (b)(4).
1986—Subsecs. (c), (d).
1978—
1967—
Effective Date of 1978 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§393a. Long-range planning for facilities
(a) The Secretary, in consultation with the Corporation, public telecommunications entities, and as appropriate with other parties, shall develop a long-range plan to accomplish the objectives set forth in
(b) Repealed.
(June 19, 1934, ch. 652, title III, §393A, formerly §396, as added
Amendments
1995—Subsec. (b).
1978—
1967—
Effective Date of 1978 Amendment
Amendment by
subpart b—national endowment for children's educational television
§394. Establishment of National Endowment
(a) Purpose
It is the purpose of this section to enhance the education of children through the creation and production of television programming specifically directed toward the development of fundamental intellectual skills.
(b) Establishment; contracts and grants
(1) There is established, under the direction of the Secretary, a National Endowment for Children's Educational Television. 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 Children's Educational Television in the making of the grants or the awarding of contracts for the purpose of making the grants.
(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 television 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 distribution, 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 television licensees and permittees nor noncommercial television licensees and permittees will have an opportunity to air such programming in the first two years after its production.
(c) Criteria for contracts and grants; applications for contracts and grants
(1) The Secretary, with the advice of the Advisory Council on Children's Educational Television, shall establish criteria for making 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 production; 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 submitted to the Secretary in such form and containing such information as the Secretary shall require by regulation.
(d) Amount of grants
Upon approving any application for a grant under subsection (b)(1)(B) of this section, 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) Advisory Council on Children's Educational Television
(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 disciplines. 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 accordance with
(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) Recordkeeping relating to grants; audits
(1) Each recipient of a grant under this section shall keep such records as may be reasonably necessary to enable the Secretary to carry out the Secretary's functions under this section, including 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 facilitate 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, documents, papers, and records of the recipient that are pertinent to a grant received under this section.
(g) Issuance of rules and regulations
The Secretary is authorized to make such rules and regulations 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 contracts and grants for such projects.
(h) Authorization of appropriations; availability
There are authorized to be appropriated $2,000,000 for fiscal 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 appropriated under this subsection for any fiscal year shall remain available for contracts and grants for projects for which applications approved under this section have been submitted wtihin 1 one year after the last day of such fiscal year.
(i) Definitions
For purposes of this section—
(1) the term "educational television programming for children" means any television program which is directed to an audience 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, association, joint stock company, trust, corporation, or State or local governmental entity.
(June 19, 1934, ch. 652, title III, §394, as added
Prior Provisions
A prior section 394, act June 19, 1934, §394, was renumbered section 393A by
Another prior section 394, act June 19, 1934, §394, was renumbered section 397 by
Amendments
1992—Subsec. (h).
Termination of Advisory Councils
Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the President or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by Congress, its duration is otherwise provided by law. See sections 3(2) and 14 of
Congressional Findings
Section 202 of
"(1) children in the United States are lagging behind those in other countries in fundamental intellectual skills, including reading, writing, mathematics, science, and geography;
"(2) these fundamental skills are essential for the future governmental and industrial leadership of the United States;
"(3) the United States must act now to greatly improve the education of its children;
"(4) television is watched by children about three hours each day on average and can be effective in teaching children;
"(5) educational television programming for children is aired too infrequently either because public broadcast licensees and permittees lack funds or because commercial broadcast licensees and permittees or cable television system operators do not have the economic incentive; and
"(6) the Federal Government can assist in the creation of children's educational television by establishing a National Endowment for Children's Educational Television to supplement the children's educational programming funded by other governmental entities."
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "within".
subpart c—telecommunications demonstrations
Subpart Referred to in Other Sections
This subpart is referred to in title 20 section 3441.
§395. Assistance for demonstration projects
(a) Authorization for grants and contracts
It is the purpose of this subpart to promote the development of nonbroadcast telecommunications facilities and services for the transmission, distribution, and delivery of health, education, and public or social service information. The Secretary is authorized, 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 agencies, organizations, and institutions for the purpose of carrying out telecommunications demonstrations.
(b) Application approval
The Secretary may approve an application submitted under subsection (a) of this section if he determines that—
(1) the project for which application is made will demonstrate innovative methods or techniques of utilizing nonbroadcast 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 capability to carry out the project for which the application is made; and
(4) the facilities and equipment acquired or developed pursuant to the application will be used substantially for the transmission, distribution, and delivery of health, education, or public or social service information.
(c) Contract with applicant
Upon approving any application under this subpart with respect 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 available therefor, in advance or by way of reimbursement, and in such installments consistent with established practice, as he may determine.
(d) Use of funds
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 facilities or equipment.
(e) "Nonbroadcast telecommunications facilities" defined
For purposes of this section, the term "nonbroadcast telecommunications facilities" includes, but is not limited to, cable television systems, communications satellite systems and related terminal equipment, and other modes of transmitting, emitting, or receiving images and sounds or intelligence by means of wire, radio, optical, electromagnetic, or other means.
(f) Funding
The funding of any demonstration pursuant to this subpart shall continue for not more than 3 years from the date of the original grant or contract.
(g) Summary and evaluation
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) Recordkeeping requirements; accessibility
(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 disposition by such recipient of the proceeds of such assistance, the total cost of the project or undertaking in connection with which such assistance 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.
(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, documents, papers, and records of the recipient that are pertinent to assistance received under this subpart.
(i) Rules and regulations
The Secretary is authorized to make such rules and regulations as may be necessary to carry out this subpart, including regulations 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) Assistance
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 functions under this subpart which are of interest to or affect the functions of the Commission. The Secretary shall provide for close coordination with the Corporation in the administration of the Secretary's functions under this subpart which are of interest to or affect the functions of the Corporation.
(k) Authorization of appropriations
There are authorized to be appropriated $1,000,000 for each of the fiscal years 1979, 1980, and 1981, to be used by the Secretary to carry out the provisions of this subpart. Sums appropriated under this subsection for any fiscal year shall remain available for payment of grants or contracts for projects for which applications approved under this subpart have been submitted within one year after the last day of such fiscal year.
(June 19, 1934, ch. 652, title III, §395, as added
Prior Provisions
A prior section 395, act June 19, 1934, ch. 652, title III, §395, as added May 1, 1962,
Effective Date
Section effective Nov. 2, 1978, see section 403 of
subpart d—corporation for public broadcasting
Subpart Referred to in Other Sections
This subpart is referred to in
§396. Corporation for Public Broadcasting
(a) Congressional declaration of policy
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, including 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 telecommunications 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 telecommunications, 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 telecommunications services which will be responsive to the interests of people both in particular localities and throughout the United States, which will constitute an expression of diversity and excellence, and which will constitute a source of alternative telecommunications services for all the citizens of the Nation;
(6) it is in the public interest to encourage the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences, particularly children and minorities;
(7) it is necessary and appropriate for the Federal Government 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 telecommunications services constitute valuable local community resources for utilizing electronic media to address national concerns 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.
(b) Establishment of Corporation; application of District of Columbia Nonprofit Corporation Act
There is authorized to be established a nonprofit corporation, 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 [D.C. Code, §29–501 et seq.].
(c) Board of Directors; functions, duties, etc.
(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 regular full-time employees of the United States) who are eminent in such fields as education, cultural and civic affairs, or the arts, including radio and television; and (B) shall be selected so as to provide as nearly as practicable a broad representation of various regions 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 individuals who represent the licensees and permittees of public television stations, and one member shall be selected from among individuals 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 [D.C. Code, §29–501 et seq.].
(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 appointed 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 chapter.
(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 sentence shall forfeit membership and the President shall appoint a new member to fill such vacancy not later than 30 days after such vacancy is determined by the Chairman of the Board.
(d) Election of Chairman and Vice Chairman; compensation of Board members
(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 member 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.
(e) Officers and employees; term of office, compensation, qualifications, and removal; political party affiliation, political test or qualification when taking personnel actions
(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 employee of the Corporation may be compensated by the Corporation at an annual rate of pay which exceeds the rate of basic pay in effect from time to time for level I of the Executive Schedule under
(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 actions with respect to officers, agents, and employees of the Corporation.
(f) Nonprofit and nonpolitical nature of Corporation
(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.
(g) Purposes and activities of Corporation; powers under District of Columbia Nonprofit Corporation Act
(1) In order to achieve the objectives and to carry out the purposes of this subpart, as set out in subsection (a) of this section, the Corporation is authorized to—
(A) facilitate the full development of public telecommunications 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 telecommunications 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 maximum 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) of this section, the Corporation is authorized to—
(A) obtain grants from and make contracts with individuals and with private, State, and Federal agencies, organizations, and institutions;
(B) contract with or make grants to public telecommunications 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 acquisition of programs or series of programs shall be evaluated 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 telecommunications entities to aid in financing the production or acquisition of public telecommunications services by such entities, 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 telecommunications services by various means, including the publication of a journal;
(E) arrange, by grant to or contract with appropriate public or private agencies, organizations, or institutions, for interconnection facilities suitable for distribution and transmission of public telecommunications services to public telecommunications entities;
(F) hire or accept the voluntary services of consultants, experts, advisory boards, and panels to aid the Corporation in carrying out the purposes of this subpart;
(G) conduct (directly or through grants or contracts) research, demonstrations, or training in matters related to public television or radio broadcasting and the use of nonbroadcast communications technologies for the dissemination of noncommercial educational and cultural television or radio programs;
(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 accomplish the purposes set forth in subsection (a) of this section.
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 foregoing activities, the Corporation shall have the usual powers conferred upon a nonprofit corporation by the District of Columbia Nonprofit Corporation Act [D.C. Code, §29–501 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 system, interconnection system or facility, program production facility, or any public telecommunications entity, system, or network; and
(B) producing programs, scheduling programs for dissemination, 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) of this section.
(5) The Corporation, in consultation with interested parties, shall create a 5-year plan for the development of public telecommunications services. Such plan shall be updated annually by the Corporation.
(h) Free or reduced rate interconnection service; access to facilities
(1) Nothing in this chapter, or in any other provision of law, shall be construed to prevent United States communications common carriers from rendering free or reduced rate communications interconnection services for public television or radio services, subject to such rules and regulations as the Commission may prescribe.
(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 public 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 capacity shall be made available to other persons for the transmission of noncommercial educational and cultural programs and program information relating to such programs, to public telecommunications entities, at a charge or charges comparable to the charge or charges, if any, imposed upon a public telecommunications entity for the distribution of noncommercial educational and cultural programs to public telecommunications entities. No such person shall be denied such access whenever sufficient capacity is available.
(i) Report to Congress
(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 Corporation's operations, activities, financial condition, and accomplishments under this subpart and such recommendations as the Corporation deems appropriate;
(B) a comprehensive and detailed inventory of funds distributed by Federal agencies to public telecommunications entities 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 Secretary pursuant to
(2) The officers and directors of the Corporation shall be available to testify before appropriate committees of the Congress with respect to such report, the report of any audit made by the Comptroller General pursuant to subsection (l) of this section, or any other matter which such committees may determine.
(j) Repeal, alteration, or amendment
The right to repeal, alter, or amend this section at any time is expressly reserved.
(k) Financing restrictions
(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 received by public broadcasting entities during the fiscal year second preceding each such fiscal year, except that the amount so appropriated 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 received by public broadcasting entities during the fiscal year second preceding each such fiscal year, except that the amount so appropriated 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) Funds appropriated under this subsection shall remain available until expended.
(E) 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 consultation 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 activities and expenditures relating to those programs and services.
(2)(A) The funds authorized to be appropriated by this subsection shall be used by the Corporation, in a prudent and financially responsible manner, solely for its grants, contracts, and administrative 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 government. The Corporation shall determine the amount of non-Federal financial support received by public broadcasting entities during each of the fiscal years referred to in paragraph (1) for the purpose 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 financial 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 subsection shall be disbursed by the Secretary of the Treasury on a fiscal year basis.
(3)(A)(i) The Corporation shall establish an annual budget for use in allocating amounts from the Fund. Of the amounts appropriated into the Fund available for allocation for any fiscal year—
(I) $10,200,000 shall be available for the administrative expenses 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 expenses of the Corporation and not more than 5 percent of all the amounts appropriated into the Fund available for allocation for any fiscal year shall be available for such administrative expenses;
(II) 6 percent of such amounts shall be available for expenses 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 the Corporation may make for assistance to stations that broadcast programs in languages other than English or for assistance 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); and
(IV) 25 percent of such remainder shall be allocated in accordance 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 distribution among the licensees and permittees of public television stations pursuant to paragraph (6)(B); and
(II) 25 percent of such amounts shall be available for distribution 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 distribution among the licensees and permittees of public radio stations pursuant to paragraph (6)(B);
(II) 7 percent of such amounts shall be available for distribution under subparagraph (B)(i) for public radio programming; and
(III) 23 percent of such amounts shall be available for distribution among the licensees and permittees of public radio stations pursuant to paragraph (6)(B), solely to be used for acquiring or producing programming that is to be distributed nationally and is designed to serve the needs of a national audience.
(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 broadcast 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 requirements, 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 (iii)(II) and (III).
(B)(i) The Corporation shall utilize the funds allocated pursuant 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 telecommunications entities, producers of national children's educational programming, and producers of programs addressing the needs and interests of minorities, and for acquisition of such programs by public telecommunications entities. The Corporation may make grants to public telecommunications entities and producers 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 production entities, producers of national children's educational programming, and producers of programming addressing the needs and interests 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 Corporation 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 public television programs by independent producers and independent production entities.
(III) The Corporation shall work with organizations or associations 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 regarding 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 Corporation shall submit a report to Congress evaluating the performance of the independent production service in light of its mission to expand the diversity and innovativeness of programming available 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 Corporation within 3 months after August 26, 1992. Under such requirements the service shall maintain at its offices a public file, updated regularly, containing information relating to the service's award of funds for the production of programming. 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) of this section.
(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 public broadcast station, unless the governing body of any such organization, any committee of such governing body, or any advisory body of any such organization, holds open meetings preceded by reasonable 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 holding closed sessions to consider matters relating to individual employees, proprietary information, litigation and other matters requiring 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 premature 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 involved shall thereafter (within a reasonable period of time) make available to the public a written statement containing an explanation 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 Corporation pursuant to subsection (l)(3)(B) of this section.
(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 paragraph (3)(A)(ii)(II) can be best allocated to meet the objectives of this chapter 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 improve their service where public radio is the only broadcast service available. The balance of the portion reserved for television stations and the total portion reserved for radio stations under paragraph (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 broadcasting, 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 stations 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 purposes related primarily to the production or acquisition of programming.
(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 subdivision of a State, or a public agency) unless such station establishes a community advisory board. Any such station shall undertake good faith efforts to assure that (i) its advisory board meets at regular intervals; (ii) the members of its advisory board regularly attend the meetings of the advisory board; and (iii) the composition of its advisory board are 2 reasonably representative of the diverse needs and interests of the communities served by such station.
(B) The board shall be permitted to review the programming goals established by the station, the service provided by the station, and the significant policy decisions rendered by the station. The board may also be delegated any other responsibilities, as determined by the governing body of the station. The board shall advise 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, except 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 management 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 special purpose subdivision of a State, or a public agency) in existence on November 2, 1978, such station shall comply with the requirements of this paragraph with respect to the establishment of a community advisory board not later than 180 days after November 2, 1978.
(E) The provision of subparagraph (A) prohibiting the distribution of funds to any public broadcast station (other than any station which is owned and operated by a State, a political or special purpose subdivision of a State, or a public agency) unless such station 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 Corporation 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 compensation as determined pursuant to Section 3 4958 of title 26 for services that the officer or employee renders to organization,4 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 Interconnection Fund (hereinafter in this subsection referred to as the "Satellite Interconnection Fund"), to be administered by the Secretary 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 authorized to be appropriated 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 fiscal year in which such disbursement is to be made.
(D) Notwithstanding any other provision of this subsection except 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 broadcast stations providing public telecommunications services or the national entity they designate for satellite interconnection purposes and to those public telecommunications entities participating in the public radio satellite interconnection system or the national entity they designate for satellite interconnection purposes, exclusively for the capital costs of the replacement, 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 personnel and members of the Board, or for expenses of consultants and advisers to the Corporation.
(11)(A) Funds may not be distributed pursuant to this subsection 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 concerning equal employment opportunity as published under section 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 Corporation 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 categories:
(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 openings occurring during the course of the year. Where the job openings 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 office 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, political party, or political committee; or
(B) discloses contributor or donor names, or other personally 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 disclosed 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 nondisclosure option.
(l) Financial management and records
(1)(A) The accounts of the Corporation shall be audited annually 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 requirement shall not preclude shared auditing arrangements between any public telecommunications entity and its licensee 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 belonging to or in use by the Corporation and necessary to facilitate the audits shall be made available to the person or persons conducting 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 included in the annual report required by subsection (i) of this section. The audit report shall set forth the scope of the audit and include such statements as are necessary to present fairly the Corporation'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 auditor's opinion of those statements.
(2)(A) The financial transactions of the Corporation for any fiscal 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 regulations 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 pertaining to its financial transactions and necessary to facilitate the audit, and they shall be afforded full facilities for verifying transactions 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 possession and custody of the Corporation.
(B) A report of each such audit shall be made by the Comptroller General to the Congress. The report to the Congress shall contain such comments and information as the Comptroller General may deem necessary to inform Congress of the financial operations and condition of the Corporation, together with such recommendations 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 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 November 2, 1978, 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 telecommunications entities receiving funds under this subpart, taking into account organizational differences among various categories of such entities. Such principles shall be designed to account fully for all funds received and expended for public telecommunications purposes 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 General; or
(II) to submit a financial statement in lieu of the audit required 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 biennially to the Corporation a copy of the audit report required pursuant to 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 competitive bidding procedures, shall keep such records as may be reasonably necessary to disclose fully the amount and the disposition by such recipient of such assistance, the 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 project 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 representatives 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 telecommunications purposes by the recipient. The Comptroller General of the United States or any of his duly authorized representatives also shall have access to such books, documents, papers, and records for the purpose of auditing and examining all funds received or expended for public telecommunications purposes during any fiscal year for which Federal funds are available to the Corporation.
(4)(A) The Corporation shall maintain the information described in subparagraphs (B), (C), and (D) at its offices for public inspection and copying for at least 3 years, according to such reasonable guidelines as the Corporation may issue. This public file shall be updated regularly. This paragraph shall be effective August 26, 1992, 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) of this section, 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 program (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 Comptroller General.
(v) Reports which the Corporation shall require to be provided 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) of this section, excluding proprietary, confidential, or privileged information.
(D) The Corporation shall make available for public inspection an annual list of national programs distributed by public broadcasting entities that receive funds under subsection (k)(3)(A)(ii)(III) or (iii)(II) of this section and are engaged primarily in the national distribution of public television or radio programs. Such list shall include the names of the programs (or program series), producers, and providers of funding.
(m) Needs of minorities and other groups
(1) Prior to July 1, 1989, and every three years thereafter, the Corporation shall compile an assessment of the needs of minority 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 underrepresented groups, and projections concerning minority employment by public broadcasting entities and public telecommunications entities. 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 described 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 for financial support from the Corporation. Such report shall include a summary of the statistical reports received by the Corporation pursuant to subsection (k)(11) of this section, and a comparison of the information 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 submitted to Congress.
(June 19, 1934, ch. 652, title III, §396, as added
References in Text
The District of Columbia Nonprofit Corporation Act, referred to in subsecs. (b), (c)(4), and (g)(3), is
Section 5(c) of the Public Telecommunications Act of 1992, referred to in subsec. (c)(5), is section 5(c) of
Prior Provisions
A prior section 396, act June 19, 1934, ch. 652, title III, §396, as added May 1, 1962,
Amendments
1999—Subsec. (k)(12).
1998—Subsec. (k)(9).
1992—Subsec. (a)(8) to (10).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(5).
Subsec. (e)(1).
Subsec. (i)(1)(C), (D).
Subsec. (k)(1)(C).
Subsec. (k)(1)(E).
Subsec. (k)(3)(A)(i)(II).
Subsec. (k)(3)(B)(iii)(V).
Subsec. (k)(3)(B)(iii)(VI).
Subsec. (k)(6)(B).
Subsec. (k)(11).
Subsec. (l)(3)(B)(ii).
Subsec. (l)(3)(B)(iii).
Subsec. (l)(4).
Subsec. (m)(2).
1988—Subsec. (a)(6) to (8).
Subsec. (g)(2)(B)(ii).
Subsec. (k)(1)(C).
Subsec. (k)(3)(A)(i)(I), (II).
"(I) not more than 5 percent of such amounts shall be available for the administrative expenses of the Corporation;
"(II) not less than 5 percent of such amounts shall be available for other expenses incurred by the Corporation, including capital costs relating to telecommunications satellites, the payment of programming royalties and other fees, and the costs of interconnection facilities and operations (as provided in clause (iv)(I)), except that the total amount available for obligation for any fiscal year under this subclause and subclause (I) shall not exceed 10 percent of the amounts appropriated into the Fund available for allocation for such fiscal year;".
Subsec. (k)(3)(A)(i)(III).
Subsec. (k)(3)(A)(ii)(II).
Subsec. (k)(3)(A)(iii).
"(I) not less than 50 percent of such amounts (as determined under paragraph (6)(A)) shall be available for distribution among the licensees and permittees of public radio stations pursuant to paragraph (6)(B); and
"(II) not more than 50 percent of such amounts (as determined under paragraph (6)(A)) shall be available for distribution under subparagraph (B)(i) for public radio."
Subsec. (k)(3)(A)(iv)(I).
Subsec. (k)(3)(A)(v).
"(I) capital costs relating to telecommunications satellites;
"(II) the payment of programming royalties and other fees; and
"(III) the costs of interconnection facilities and operations (as provided in clause (iv));
exceed 6 percent of the amounts appropriated into the Fund available for allocation for such fiscal year, then 75 percent of such excess costs shall be defrayed by the licensees and permittees of public television stations from amounts available to such licensees and permittees under clause (ii)(I) and 25 percent of such excess costs shall be defrayed by the licensees and permittees of public radio stations from amounts available to such licensees and permittees under clause (iii)(I)."
Subsec. (k)(3)(B)(i).
Subsec. (k)(3)(B)(iii).
Subsec. (k)(3)(C).
Subsec. (k)(3)(D).
Subsec. (k)(6)(A).
Subsec. (k)(6)(B).
Subsec. (k)(7).
Subsec. (k)(10).
Subsec. (m).
1986—Subsec. (k)(1)(C).
Subsec. (k)(3)(A)(i)(II).
Subsec. (k)(8) to (10).
1983—Subsec. (c)(1).
Subsec. (d)(1).
Subsec. (e)(1).
Subsec. (k)(1)(C).
Subsec. (k)(10).
Subsec. (l)(4).
1981—Subsec. (a)(5).
Subsec. (c).
Subsec. (d).
Subsec. (e)(1).
Subsec. (g).
Subsec. (i)(1).
Subsec. (k)(1)(C).
Subsec. (k)(2)(B).
Subsec. (k)(3)(A).
Subsec. (k)(3)(B)(i).
Subsec. (k)(3)(B)(ii).
Subsec. (k)(3)(B)(iii), (iv).
Subsec. (k)(6)(A).
Subsec. (k)(6)(B).
Subsec. (k)(7).
Subsec. (k)(8).
Subsec. (k)(9).
Subsec. (l).
1978—Subsec. (a).
Subsec. (d)(1).
Subsec. (e)(1).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Subsec. (k).
Subsec. (l)(3).
1975—Subsec. (g)(2)(H).
Subsec. (i).
Subsec. (k)(3) to (7).
1973—Subsec. (k)(1).
Subsec. (k)(2).
1972—Subsec. (k)(1).
Subsec. (k)(2).
1970—Subsec. (k).
1969—Subsec. (k)(1).
Subsec. (k)(2).
1968—Subsec. (k).
Effective Date of 1999 Amendment
Effective Date of 1992 Amendment
Section 22 of
Effective Date of 1988 Amendment
Amendment by sections 6 and 7(d) of
Effective Date of 1981 Amendment
Section 1227(c)(4) of
Section 1227(d)(3) of
Effective Date of 1978 Amendment
Amendment by
Transition Rules Relating to Term of Office of Board of Directors of Corporation for Public Broadcasting
Section 5(c) of
"(1) With respect to the three offices whose terms are prescribed by law to expire on March 26, 1992, the term for each such office immediately after that date shall expire on January 31, 1998.
"(2) With respect to the two offices whose terms are prescribed by law to expire on March 1, 1994, the term for each of such offices immediately after that date shall expire on January 31, 2000.
"(3) With respect to the five offices whose terms are prescribed by law to expire on March 26, 1996—
"(A) one such office, as selected by the President, shall be abolished on January 31, 1996;
"(B) the term immediately after March 26, 1996, for another such office, as designated by the President, shall expire on January 31, 2000; and
"(C) the term for each of the remaining three such offices immediately after March 26, 1996, shall expire on January 31, 2002.
"(4) As used in this subsection, the term 'office' means an office as a member of the Board of Directors of the Corporation for Public Broadcasting."
Objectivity and Balance Policy, Procedures, and Report
Section 19 of
"(1) review the Corporation's existing efforts to meet its responsibility under section 396(g)(1)(A);
"(2) after soliciting the views of the public, establish a comprehensive policy and set of procedures to—
"(A) provide reasonable opportunity for members of the public to present comments to the Board regarding the quality, diversity, creativity, excellence, innovation, objectivity, and balance of public broadcasting services, including all public broadcasting programming of a controversial nature, as well as any needs not met by those services;
"(B) review, on a regular basis, national public broadcasting programming for quality, diversity, creativity, excellence, innovation, objectivity, and balance, as well as for any needs not met by such programming;
"(C) on the basis of information received through such comment and review, take such steps in awarding programming grants pursuant to clauses (ii)(II), (iii)(II), and (iii)(III) of section 396(k)(3)(A) of the Communications Act of 1934 (
"(D) disseminate among public broadcasting entities information about its efforts to address concerns about objectivity and balance relating to programming of a controversial nature so that such entities can utilize the Corporation's experience in addressing such concerns within their own operations; and
"(3) starting in 1993, by January 31 of each year, prepare and submit to the President for transmittal to the Congress a report summarizing its efforts pursuant to paragraphs (1) and (2)."
Consumer Information; Disclosure of Funding
Section 20 of
Independent Production Service Funding
Section 21 of
Satellite Replacement Needs; Report to Congress
Section 4(b) of
Continuation of Individuals Serving on the Board of Directors; Reduction in Membership of Board; Political Affiliation of Board Appointees; Abolition of Five Offices on March 1, 1984
Section 1225(a)(2) of
"(A) The amendment made in paragraph (1) [amending this section] shall not affect the continuation in office of any individual serving on the Board of Directors of the Corporation for Public Broadcasting on the date of the enactment of this Act [Aug. 13, 1981].
"(B) Notwithstanding the provisions of subsection (c) of section 396 of the Communications Act of 1934 [subsec. (c) of this section], in the case of the offices of director the terms of which expired March 1982, persons appointed to fill two of such vacancies existing as of December 13, 1982, shall be appointed for terms which shall expire on March 1, 1984 and shall not be respresentative [sic] of the political party having a majority of the directors of the Board on December 13, 1982. Persons appointed for a term beginning March 1, 1984, to fill the vacancies occurring in such offices the terms of which, by reason of the preceding sentence, expire on March 1, 1984, shall not be filled by persons representing the political party having a majority of the directors of the Board on March 1, 1984. Persons appointed on or after March 1, 1984, to fill vacancies in the two such offices shall be appointed for terms of five years. On March 1, 1984, there are abolished those five offices of director the terms of which, without application of the preceding provisions of this paragraph, expire on such date. In administering the provisions of this paragraph a director is a minority member of the Board if he is not a member of the political party to which the majority of the directors of the Board are members."
Temporary Commission on Alternative Financing for Public Telecommunications; Composition; Personnel; Functions; Report; Demonstration Programs for Determining Feasibility of Permitting Public Television Stations and Public Radio Station Licensees To Broadcast Advertising Announcements
Sections 1232 and 1233 of
Compensation of Officers and Employees
Section 303(b) of
Section 307(b) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by "and".
2 So in original. Probably should be "is".
3 So in original. Probably should not be capitalized.
4 So in original. Probably should be "the organization,".
subpart e—general provisions
§397. Definitions
For the purposes of this part—
(1) The term "construction" (as applied to public telecommunications facilities) means acquisition (including acquisition by lease), installation, and modernization of public telecommunications facilities and planning and preparatory steps incidental to any such acquisition, 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 telecommunications 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 committee 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 November 2, 1978, 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 purposes.
(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 disseminating audio or video noncommercial educational and cultural 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 atmosphere.
(8) The term "nonprofit" (as applied to any foundation, corporation, or association) means a foundation, corporation, or association, 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 contributions for the construction or operation of noncommercial educational 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 construction or operation of noncommercial educational broadcast stations or for the production, acquisition, distribution, or dissemination of educational television or radio programs, or payments in exchange for services or materials with respect to the provision 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 fiscal 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 nonconstruction costs incurred by new telecommunications entities before 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 activated, except that such expenses shall not include any portion of the salaries of any personnel employed by an operating public telecommunications entity.
(11) The term "public broadcasting entity" means the Corporation, any licensee or permittee of a public broadcast station, or any nonprofit institution engaged primarily in the production, acquisition, distribution, or dissemination of educational and cultural television or radio programs.
(12) The term "public telecommunications entity" means any enterprise which—
(A) is a public broadcast station or a noncommercial telecommunications entity; and
(B) disseminates public telecommunications services to the public.
(13) The term "public telecommunications facilities" means apparatus 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, microwave equipment, mobile equipment, satellite communications equipment, instructional television fixed service equipment, subsidiary 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 noncommercial 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 Secretary 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, American Samoa, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.
(17) The term "system of public telecommunications entities" means any combination of public telecommunications entities acting cooperatively to produce, acquire, or distribute programs, or to undertake related activities.
(June 19, 1934, ch. 652, title III, §397, formerly §394, as added
References in Text
This part, referred to in provision preceding par. (1), commences with
Prior Provisions
A prior section 397, act June 19, 1934, ch. 652, title III, §397, as added May 1, 1962,
Amendments
1996—Par. (9).
1990—Par. (2).
Par. (15).
1981—Par. (15).
1978—
1976—Par. (2).
1975—Pars. (10), (11).
1967—Par. (1).
Par. (2).
Par. (4).
Pars. (6) to (9).
Effective Date of 1978 Amendment
Amendment by
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
Section Referred to in Other Sections
This section is referred to in
§398. Federal interference or control
(a) Prohibition
Nothing contained in this part shall be deemed (1) to amend any other provision of, or requirement under, this chapter; or (2) except to the extent authorized in subsection (b) of this section, to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over public telecommunications, 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 telecommunications entity.
(b) Equal opportunity employment
(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 telecommunications entities receiving funds pursuant to subpart C 1 (hereinafter in this subsection referred to as "recipients"), in accordance 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.
(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 Secretary under this subsection which are of interest to or affect the functions of the Commission so that, to the maximum extent possible consistent with the enforcement responsibilities of each, the reporting requirements of public telecommunications entities shall be uniformly based upon consistent definitions and categories of information.
(3)(A) The Corporation shall incorporate into each grant agreement or contract with any recipient entered into on or after the effective date of the rules and regulations prescribed by the Secretary pursuant to paragraph (2)(A), a statement indicating that, as a material part of the terms and conditions of the grant agreement 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 (within the meaning of paragraph (1)) of funds under subpart C 1 shall, before receiving any such funds, provide to the Corporation any information which the Corporation may require to satisfy itself that such person is affording equal opportunity in employment in accordance 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 employment 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 Secretary conducts a review under the preceding sentence, the Corporation shall make funds available to the person involved pursuant 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 submit a summary of such report to the President and the Congress as part of the report required in
(5) Whenever the Secretary makes a final determination, pursuant to the rules and regulations which the Secretary shall prescribe, 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 receipt 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 payments shall take place only when the Secretary certifies to the Corporation that the recipient has entered into a compliance agreement 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) Control over content or distribution of programs
Nothing in this section shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the content or distribution of public telecommunications programs and services, or over the curriculum or program of instruction of any educational institution or school system.
(June 19, 1934, ch. 652, title III, §398, formerly §397, as added
References in Text
This part, referred to in subsecs. (a) and (b)(5), commences with
Subpart C, referred to in subsec. (b)(1), (3)(A), was redesignated subpart D by
Amendments
1988—Subsec. (b)(1).
1978—
1967—
Effective Date of 1978 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§399. Support of political candidates prohibited
No noncommercial educational broadcasting station may support or oppose any candidate for political office.
(June 19, 1934, ch. 652, title III, §399, as added
Amendments
1988—
1981—
1976—Subsec. (b)(5).
1973—
§399a. Use of business or institutional logograms
(a) "Business or institutional logogram" defined
For purposes of this section, the term "business or institutional logogram" means any aural or visual letters or words, or any symbol or sign, which is used for the exclusive purpose of identifying 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) Permitted uses
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 organization involved, except that such announcements may not interrupt regular programming.
(c) Authority of Commission not limited
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 corporations, companies, or other organizations.
(June 19, 1934, ch. 652, title III, §399A, as added
§399b. Offering of certain services, facilities, or products by public broadcast station
(a) "Advertisement" defined
For purposes of this section, the term "advertisement" means any message or other programming material which is broadcast 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) Offering of services, facilities, or products permitted; advertisements prohibited
(1) Except as provided in paragraph (2), each public broadcast station shall be authorized to engage in the offering of services, facilities, or products in exchange for remuneration.
(2) No public broadcast station may make its facilities available to any person for the broadcasting of any advertisement.
(c) Use of funds from offering services, etc.
Any public broadcast station which engages in any offering specified in subsection (b)(1) of this section may not use any funds distributed by the Corporation under
(d) Development of accounting system
Each public broadcast station which engages in the activity specified in subsection (b)(1) of this section shall, in consultation with the Corporation, develop an accounting system which is designed to identify 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.
(June 19, 1934, ch. 652, title III, §399B, as added
SUBCHAPTER IV—PROCEDURAL AND ADMINISTRATIVE PROVISIONS
§401. Enforcement provisions
(a) Jurisdiction
The district courts of the United States shall have jurisdiction, 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 chapter by any person, to issue a writ or writs of mandamus commanding such person to comply with the provisions of this chapter.
(b) Orders of Commission
If any person fails or neglects to obey any order of the Commission 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 district court of the United States for the enforcement of such order. If, after hearing, that court determines that the order was regularly 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) Duty to prosecute
Upon the request of the Commission it shall be the duty of any United States attorney 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 necessary proceedings for the enforcement of the provisions of this chapter and for the punishment of all violations thereof, and the costs and expenses of such prosecutions shall be paid out of the appropriations for the expenses of the courts of the United States.
(June 19, 1934, ch. 652, title IV, §401,
References in Text
This chapter, referred to in subsecs. (a) and (c), was in the original "this Act", meaning act June 19, 1934, ch. 652,
Amendments
1974—Subsec. (d).
Change of Name
Act June 25, 1948, eff. Sept. 1, 1948, substituted "United States attorney" for "district attorney" in subsec. (c). See
Federal Rules of Civil Procedure
Application, see rule 81, Title 28, Appendix, Judiciary and Judicial Procedure.
Judgment and costs, see rule 54.
§402. Judicial review of Commission's orders and decisions
(a) Procedure
Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in
(b) Right to appeal
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 license, 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, assign, 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
(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) of this subsection.
(7) By any person upon whom an order to cease and desist has been served under
(8) By any radio operator whose license has been suspended by the Commission.
(9) By any applicant for authority to provide interLATA services under
(c) Filing notice of appeal; contents; jurisdiction; temporary orders
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 appeal shall contain a concise statement of the nature of the proceedings 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 notice and statement upon the Commission. Upon filing of such notice, the court shall have jurisdiction of the proceedings and of the questions determined therein and shall have power, by order, directed 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) Notice to interested parties; filing of record
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 interested 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
(e) Intervention
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 interest of such party, together with proof of service of true copies of said notice and statement, both upon appellant and upon the Commission. 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 interested party.
(f) Records and briefs
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) Time of hearing; procedure
The court shall hear and determine the appeal upon the record before it in the manner prescribed by
(h) Remand
In the event that the court shall render a decision and enter an order reversing the order of the Commission, it shall remand 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) Judgment for costs
The court may, in its discretion, enter judgment for costs in favor of or against an appellant, or other interested parties intervening in said appeal, but not against the Commission, depending upon the nature of the issues involved upon said appeal and the outcome thereof.
(j) Finality of decision; review by Supreme Court
The court's judgment shall be final, subject, however, to review by the Supreme Court of the United States upon writ of certiorari on petition therefor under
(June 19, 1934, ch. 652, title IV, §402,
Amendments
1996—Par. (6).
Subsec. (b)(9).
1984—Subsec. (g).
1982—Subsec. (a).
Subsec. (d).
1958—Subsec. (d).
1952—Act July 16, 1952, amended section generally to set up the procedure for the judicial review of the Commission's orders and decisions.
1949—Subsec. (a). Act May 24, 1949, substituted "
1937—Subsec. (a). Act May 20, 1937, §11, inserted ", or suspending a radio operator's license" after "or for modifications of an existing radio station license".
Subsec. (b)(3). Act May 20, 1937, §12, added par. (3) relating to appeal from decisions in case of any radio operator whose license has been suspended by the Commission.
Subsec. (c). Act May 20, 1937, §13, inserted in last sentence "or order" after "upon the application".
Change of Name
Act June 7, 1934, ch. 426,
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1952 Amendment
Section 19(2) of act July 16, 1952, provided that: "The amendments made by this Act to section 402 of the Communications Act of 1934 [this section] (relating to judicial review of orders and decisions of the Commission) shall not apply with respect to any action or appeal which is pending before any court on the date of enactment of this Act [July 16, 1952]."
Administrative Orders Review Act
Court of appeals exclusive jurisdiction respecting final orders of Federal Communications Commission made reviewable by subsec. (a) of this section, see
Section Referred to in Other Sections
This section is referred to in
§403. Inquiry by Commission on its own motion
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 chapter, or concerning which any question may arise under any of the provisions of this chapter, or relating to the enforcement of any of the provisions of this chapter. 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 chapter, 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.
(June 19, 1934, ch. 652, title IV, §403,
§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 requirement in the premises; and in case damages are awarded such report shall include the findings of fact on which the award is made.
(June 19, 1934, ch. 652, title IV, §404,
§405. Petition for reconsideration; procedure; disposition; time of filing; additional evidence; time for disposition of petition for reconsideration of order concluding hearing or investigation; appeal of order
(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
(b)(1) Within 90 days after receiving a petition for reconsideration of an order concluding a hearing under
(2) Any order issued under paragraph (1) shall be a final order and may be appealed under
(June 19, 1934, ch. 652, title IV, §405,
Codification
"Reconsiderations" substituted in text for "Rehearings" as the probable intent of Congress, in view of amendment by section 127(c)(1) of
Amendments
1988—
1982—
1961—
1960—
1952—Act July 16, 1952, provided for taking of newly discovered evidence and evidence which should have been taken in original hearing.
Effective Date of 1960 Amendment
Section 4(d)(4) of
Section Referred to in Other Sections
This section is referred to in
§406. Compelling furnishing of facilities; mandamus; jurisdiction
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 chapter, of any of the provisions of this chapter which prevent the relator from receiving service in interstate or foreign communication by wire or radio, or in interstate or foreign transmission of energy by radio, from said carrier at the same charges, or upon terms or conditions as favorable as those given by said carrier for like communication or transmission under similar conditions 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 determination of the question of fact: Provided further, That the remedy given by writ of mandamus shall be cumulative and shall not be held to exclude or interfere with other remedies provided by this chapter.
(June 19, 1934, ch. 652, title IV, §406,
Federal Rules of Civil Procedure
Application, see rule 81, Title 28, Appendix, Judiciary and Judicial Procedure.
Effect of rules on this section, see note by Advisory Committee under rule 81.
§407. Order for payment of money; petition for enforcement; procedure; order of Commission as prima facie evidence; costs; attorneys' fees
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 district 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 district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suits the findings and order of the Commission shall be prima facie evidence of the facts therein stated, except that the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. 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.
(June 19, 1934, ch. 652, title IV, §407,
Federal Rules of Civil Procedure
Complaint in civil action, see rules 3 and 7, Title 28, Appendix, Judiciary and Judicial Procedure.
§408. Order not for payment of money; when effective
Except as otherwise provided in this chapter, all orders of the Commission, other than orders for the payment of money, shall take effect thirty calendar days from the date upon which public notice of the order is given, unless the Commission designates a different effective 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.
(June 19, 1934, ch. 652, title IV, §408,
Amendments
1982—
§409. Hearings
(a) Filing of initial decisions; exceptions
In every case of adjudication (as defined in
(b) Exceptions to initial decisions; memoranda; determination of Commission or authority within Commission; prohibition against consideration of own decision
In every case of adjudication (as defined in
(c) Notice and opportunity for participation by parties; applicability of administrative procedure provisions
(1) In any case of adjudication (as defined in
(2) The provision in
(d) Applicability of administrative procedure provisions
To the extent that the foregoing provisions of this section and section 155(d) 1 of this title are in conflict with the provisions of subchapter II of
(e) Subpenas; witnesses; production of documents; fees and mileage
For the purposes of this chapter the Commission shall have the power to require by subpena the attendance and testimony of witnesses and the production of all books, papers, schedules of charges, contracts, agreements, and documents relating to any matter under investigation. Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States.
(f) Designated place of hearing; aid in enforcement of orders
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 proceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section.
(g) Contempts
Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpena issued to any common carrier or licensee or other person, issue an order requiring such common carrier, licensee, or 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) Depositions
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 investigation pending before it, at any stage of such proceeding or investigation. 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 supreme 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 either 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 hereinbefore provided.
(i) Oaths; testimony in writing
Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent.
(j) Foreign depositions
If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before 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 Commission.
(k) Deposition fees
Witnesses whose depositions are taken as authorized in this chapter, and the magistrate 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.
(l) Repealed. Pub. L. 91–452, title II, §242, Oct. 15, 1970, 84 Stat. 930
(m) Penalties
Any person who shall neglect or refuse to attend and testify, 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 requirement 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.
(June 19, 1934, ch. 652, title IV, §409,
References in Text
Codification
In subsecs. (a), (b), and (c)(1), "adjudication (as defined in
Amendments
1970—Subsec. (l).
1961—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
1952—Act July 16, 1952, amended section generally, inserting subsecs. (a) to (d) and redesignating former subsecs. (b) to (j) as (e) to (m), respectively.
Effective Date of 1970 Amendment
Amendment by
Savings Provision
Section 5 of
Federal Rules of Civil Procedure
Subpoena, see rule 45, Title 28, Appendix, Judiciary and Judicial Procedure.
Cross References
Immunity of witnesses, see
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§410. Joint boards and commissions
(a) State joint boards; reference of communication matters; composition; jurisdiction, powers, duties, and obligations; conduct of proceedings; force and effect of joint board action; members: nomination, appointment, and rejection; allowances for expenses
Except as provided in
(b) State commissions; conferences with Commission regarding matters of carriers subject to their jurisdiction; joint hearings; cooperation with Commission
The Commission may confer with any State commission having regulatory jurisdiction with respect to carriers, regarding the relationship between rate structures, accounts, charges, practices, classifications, and regulations of carriers subject to the jurisdiction 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 is authorized to act. The Commission is authorized in the administration of this chapter to avail itself of such cooperation, services, records, and facilities as may be afforded by any State commission.
(c) Federal-State Joint Board; reference of proceedings regarding jurisdictional separation of common carrier property and expenses between interstate and intrastate operations and other matters relating to common carrier communications of joint concern; jurisdiction, powers, duties, and obligations; recommendation of decisions; State members; presence at oral arguments and nonvoting participation in deliberations; composition; Chairman
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 provided in
(June 19, 1934, ch. 652, title IV, §410,
Codification
In subsec. (a), "
Amendments
1994—Subsec. (c).
1971—Subsec. (c).
1956—Subsec. (a). Act Aug. 2, 1956, inserted in second sentence "and examiner provided for in
1952—Subsec. (a). Act July 16, 1952, inserted first sentence so as to bring these provisions in conformity with
Section Referred to in Other Sections
This section is referred to in
§411. Joinder of parties
(a) In any proceeding for the enforcement of the provisions of this chapter, whether such proceeding be instituted before the Commission 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, regulation, 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 defendants 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 operating 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 defendant found to be liable to such plaintiff.
(June 19, 1934, ch. 652, title IV, §411,
Federal Rules of Civil Procedure
Territorial limits of effective service of process, see rule 4, Title 28, Appendix, Judiciary and Judicial Procedure.
§412. Documents filed with Commission as public records; prima facie evidence; confidential records
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 carriers and other persons made to the Commission as required under the provisions of this chapter shall be preserved as public records in the custody of the secretary of the Commission, and shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the Commission and in all judicial proceedings; 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 communication 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.
(June 19, 1934, ch. 652, title IV, §412,
Federal Rules of Civil Procedure
Effect of rule 44 on this section, see note by Advisory Committee under rule 44, Title 28, Appendix, Judiciary and Judicial Procedure.
Proof of official records, see rule 44.
§413. Designation of agent for service; method of service
It shall be the duty of every carrier subject to this chapter to designate in writing an agent in the District of Columbia, upon whom service of all notices and process and all orders, decisions, and requirements of the Commission may be made for and on behalf of said carrier in any proceeding or suit pending before the Commission, 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.
(June 19, 1934, ch. 652, title IV, §413,
Amendments
1994—
§414. Exclusiveness of chapter
Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.
(June 19, 1934, ch. 652, title IV, §414,
References in Text
This chapter, referred to in text, was in the original "this Act", meaning act June 19, 1934, ch. 652,
§415. Limitations of actions
(a) Recovery of charges by carrier
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) Recovery of damages
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.
(c) Recovery of overcharges
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, subject 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 include two years from the time notice in writing is given by the carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice.
(d) Extension
If on or before expiration of the period of limitation in subsection (b) or (c) of this section a carrier begins action under subsection (a) of this section for recovery of lawful charges in respect of the same service, or, without beginning action, collects charges in respect of that service, said period 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) Accrual of cause of action for transmission of message
The cause of action in respect of the transmission of a message 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) Enforcement petition
A petition for the enforcement of an order of the Commission 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) "Overcharges" defined
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.
(June 19, 1934, ch. 652, title IV, §415,
Amendments
1974—Subsecs. (a) to (c).
§416. Orders of Commission
(a) Service
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) Suspension or modification
Except as otherwise provided in this chapter, the Commission is authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper.
(c) Compliance
It shall be the duty of every person, its agents and employees, and any receiver or trustee thereof, to observe and comply with such orders so long as the same shall remain in effect.
(June 19, 1934, ch. 652, title IV, §416,
SUBCHAPTER V—PENAL PROVISIONS; FORFEITURES
Subchapter Referred to in Other Sections
This subchapter is referred to in
§501. General penalty
Any person who willfully and knowingly does or causes or suffers to be done any act, matter, or thing, in this chapter prohibited or declared to be unlawful, or who willfully and knowingly omits or fails to do any act, matter, or thing in this chapter required to be done, or willfully and knowingly causes or suffers such omission or failure, shall, upon conviction thereof, be punished for such offense, for which no penalty (other than a forfeiture) is provided in this chapter, 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 been once convicted of an offense punishable under this section, who is subsequently convicted of violating any provision of this chapter 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.
(June 19, 1934, ch. 652, title V, §501,
References in Text
This chapter, referred to in text, was in the original "this Act", meaning act June 19, 1934, ch. 652,
Amendments
1954—Act Mar. 23, 1954, provided that any offense punishable hereunder, except a second or subsequent offense, should constitute a misdemeanor rather than a felony, as those terms are defined in
§502. Violation of rules, regulations, etc.
Any person who willfully and knowingly violates any rule, regulation, restriction, or condition made or imposed by the Commission under authority of this chapter, or any rule, regulation, restriction, or condition made or imposed by any international radio or wire communications 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 punished, upon conviction thereof, by a fine of not more than $500 for each and every day during which such offense occurs.
(June 19, 1934, ch. 652, title V, §502,
§503. Forfeitures
(a) Rebates and offsets
Any person who shall deliver messages for interstate or foreign 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, officer, 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 messages as fixed by the schedules of charges provided for in this chapter, shall in addition to any other penalty provided by this chapter 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 consideration, so received or accepted, or both, as the case may be.
(b) Activities constituting violations authorizing imposition of forfeiture penalty; amount of penalty; procedures applicable; persons subject to penalty; liability exemption period
(1) Any person who is determined by the Commission, in accordance 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, certificate, or other instrument or authorization issued by the Commission;
(B) willfully or repeatedly failed to comply with any of the provisions of this chapter or of any rule, regulation, or order issued by the Commission under this chapter or under any treaty, convention, or other agreement to which the United States is a party and which is binding upon the United States;
(C) violated any provision of
(D) violated any provision of
shall be liable to the United States for a forfeiture penalty. A forfeiture penalty under this subsection shall be in addition to any other penalty provided for by this chapter; except that this subsection shall not apply to any conduct which is subject to forfeiture under subchapter II of this chapter, part II or III of subchapter III of this chapter, or
(2)(A) If the violator is (i) a broadcast station licensee or permittee, (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 continuing violation, except that the amount assessed for any continuing 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 chapter or an applicant for any common carrier license, permit, certificate, or other instrument of authorization issued by the Commission, 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) In any case not covered in subparagraph (A) or (B), the amount of any forfeiture penalty determined under this subsection 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 single act or failure to act described in paragraph (1) of this subsection.
(D) 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 designee 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.
(3)(A) At the discretion of the Commission, a forfeiture penalty may be determined against a person under this subsection after notice and an opportunity for a hearing before the Commission or an administrative law judge thereof in accordance with
(B) If any person fails to pay an assessment of a forfeiture penalty 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 appropriate district court of the United States. In such action, the validity 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 writing, 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 authorization 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
(5) No forfeiture liability shall be determined under this subsection against any person, if such person does not hold a license, permit, certificate, or other authorization issued by the Commission, and if such person is not an applicant for a license, permit, certificate, or other authorization issued by the Commission, unless, 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 interview with an official of the Commission, at the field office of the 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
(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 subchapter III of this chapter and if the violation charged occurred—
(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 subchapter III of this chapter 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 current term of such license" means the date of commencement of the last term of license for which the licensee has been granted a license by the Commission. A separate license term shall not be deemed to have commenced as a result of continuing a license in effect under
(June 19, 1934, ch. 652, title V, §503,
References in Text
Parts II and III of subchapter III of this chapter, referred to in subsec. (b)(1), are classified to sections 351 et seq. and 381 et seq., respectively, of this title.
Amendments
1992—Subsec. (b)(5).
Subsec. (b)(6).
Subsec. (b)(6)(A).
1990—Subsec. (b)(5).
1989—Subsec. (b)(1), (2).
1983—Subsec. (b)(5).
1982—Subsec. (b)(5).
1980—Subsec. (b).
1978—Subsec. (b).
1960—
Effective Date of 1978 Amendment
Amendment by
Cross References
Forfeitures for violation of provisions relating to equipment, see
Section Referred to in Other Sections
This section is referred to in
§504. Forfeitures
(a) Recovery
The forfeitures provided for in this chapter shall be payable into the Treasury of the United States, and shall be recoverable, except as otherwise provided with respect to a forfeiture penalty determined under
(b) Remission and mitigation
The forfeitures imposed by subchapter II of this chapter, parts II and III of subchapter III of this chapter, and
(c) Use of notice of apparent liability
In any case where the Commission issues a notice of apparent liability looking toward the imposition of a forfeiture under this chapter, 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.
(June 19, 1934, ch. 652, title V, §504,
References in Text
Parts II and III of subchapter III of this chapter, referred to in subsec. (b), are classified to sections 351 et seq. and 381 et seq., respectively, of this title.
Amendments
1980—Subsec. (b).
1978—Subsec. (a).
Subsec. (b).
1962—Subsec. (b).
1960—Subsec. (a).
Subsec. (b).
Subsec. (c).
1956—Subsec. (b). Act Aug. 6, 1956, inserted reference to part III of subchapter III.
1954—Subsec. (b). Act Aug. 13, 1954, inserted reference to
1937—Act May 20, 1937, designated existing provisions as subsec. (a), inserted proviso as to recovery of forfeiture in any district where a ship may arrive or depart, and added subsec. (b).
Change of Name
Act June 25, 1948, eff. Sept. 1, 1948, substituted "United States attorneys" for "district attorneys". See
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1962 Amendment
Section 3 of
Effective Date of 1956 Amendment
Amendment by act Aug. 6, 1956, effective Mar. 1, 1957, see section 4 of act Aug. 6, 1956, set out as an Effective Date note under
Effective Date of 1954 Amendment
Amendment by act Aug. 13, 1954, effective Nov. 13, 1954, see section 6 of act Aug. 13, 1954, set out as an Effective Date note under
Federal Rules of Civil Procedure
Admiralty and maritime rules of practice (which included libel procedures) were superseded, and civil and admiralty procedures in United States district courts were unified, effective July 1, 1966, see rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims, Title 28, Appendix, Judiciary and Judicial Procedure.
Cross References
Exclusive jurisdiction of district courts of the United States for recovery of forfeitures, see
Mode of recovery for forfeitures generally, see
Venue of proceeding for recovery for forfeiture, see
Section Referred to in Other Sections
This section is referred to in
§505. Venue of trials
The trial of any offense under this chapter 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 district, 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.
(June 19, 1934, ch. 652, title V, §505,
Federal Rules of Criminal Procedure
Special venue provisions of section as unaffected by rule 18, see Notes of Advisory Committee on Rules set out under rule 18, Title 18, Appendix, Crimes and Criminal Procedure.
Cross References
Offenses begun in one district and completed in another, see
Offenses not committed in any district, see
§506. Repealed. Pub. L. 96–507, §1, Dec. 8, 1980, 94 Stat. 2747
Section, act June 19, 1934, ch. 652, title V, §506, as added Apr. 16, 1946, ch. 138,
§507. Violation of Great Lakes Agreement
(a) Any vessel of the United States that is navigated in violation 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.
(June 19, 1934, ch. 652, title V, §506, formerly §507, as added Aug. 13, 1954, ch. 735, §3,
Prior Provisions
A prior section 506 of act June 19, 1934, ch. 652, was classified to
Effective Date
Section 6 of act Aug. 13, 1954, provided that: "This Act [enacting this section and amending
Federal Rules of Civil Procedure
Admiralty and maritime rules of practice (which included libel procedures) were superseded, and civil and admiralty procedures in United States district courts were unified, effective July 1, 1966, see rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims, Title 28, Appendix, Judiciary and Judicial Procedure.
Section Referred to in Other Sections
This section is referred to in
§508. Disclosure of payments to individuals connected with broadcasts
(a) Payments to station employees
Subject to subsection (d) of this section, 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 consideration 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.
(b) Production or preparation of programs
Subject to subsection (d) of this section, any person who, in connection with the production or preparation of any program or program matter which is intended for broadcasting over any radio station, accepts or agrees to accept, or pays or agrees to pay, any money, service or other valuable consideration for the inclusion of any matter 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 whom such program or program matter is being produced, or to the licensee of such station over which such program is broadcast.
(c) Supplying of program or program matter
Subject to subsection (d) of this section, 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 broadcast, 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) Waiver of announcements under section 317(d)
The provisions of this section requiring the disclosure of information shall not apply in any case where, because of a waiver made by the Commission under
(e) Announcement under section 317 as sufficient disclosure
The inclusion in the program of the announcement required by
(f) "Service or other valuable consideration" defined
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 program of any person, product, service, trademark, or brand name beyond an identification which is reasonably related to the use of such service or property in such broadcast or such program.
(g) Penalties
Any person who violates any provision of this section shall, for each such violation, be fined not more than $10,000 or imprisoned not more than one year, or both.
(June 19, 1934, ch. 652, title V, §507, formerly §508, as added
Prior Provisions
A prior section 507 of act June 19, 1934, ch. 652, was renumbered section 506 by section 1 of
Section Referred to in Other Sections
This section is referred to in
§509. Prohibited practices in contests of knowledge, skill, or chance
(a) Influencing, prearranging, or predetermining outcome
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 special 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 otherwise, to induce or cause any contestant in a purportedly bona fide contest of intellectual knowledge or intellectual skill to refrain 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 outcome of a purportedly bona fide contest of intellectual knowledge, intellectual skill, or chance.
(4) To produce or participate in the production for broadcasting 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) "Contest" and "the listening or viewing public" defined
For the purposes 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 presented by the program sponsor or by any other person or persons, 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) Penalties
Whoever violates subsection (a) of this section shall be fined not more than $10,000 or imprisoned not more than one year, or both.
(June 19, 1934, ch. 652, title V, §508, formerly §509, as added
Prior Provisions
A prior section 508 of act June 19, 1934, ch. 652, was renumbered section 507 by section 1 of
Section Referred to in Other Sections
This section is referred to in
§510. Forfeiture of communications devices
(a) Violation with willful and knowing intent
Any electronic, electromagnetic, radio frequency, or similar device, or component thereof, used, sent, carried, manufactured, assembled, possessed, offered for sale, sold, or advertised with willful and knowing intent to violate
(b) Seizure
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, except that seizure without such process may be made if the seizure is incident to a lawful arrest or search.
(c) Laws applicable to seizure and forfeiture
All provisions of law relating to—
(1) the seizure, summary and judicial forfeiture, and condemnation 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 forfeitures;
shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as 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) Disposition of forfeited property
Whenever property is forfeited under this section, the Attorney General of the United States may forward it to the Commission 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.
(June 19, 1934, ch. 652, title V, §510, as added
Prior Provisions
A prior section 510, act June 19, 1934, ch. 652, title V, §510, as added May 11, 1962,
SUBCHAPTER V–A—CABLE COMMUNICATIONS
Subchapter Referred to in Other Sections
This subchapter is referred to in
Part I—General Provisions
Part Referred to in Other Sections
This part is referred to in
§521. Purposes
The purposes of this subchapter are to—
(1) establish a national policy concerning cable communications;
(2) establish franchise procedures and standards which encourage 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 systems;
(4) assure that cable communications provide and are encouraged 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 renewal where the operator's past performance and proposal for future performance meet the standards established by this subchapter; and
(6) promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems.
(June 19, 1934, ch. 652, title VI, §601, as added
Effective Date
Section 9(a) of
Short Title
For short title of
Congressional Findings and Policy for Pub. L. 102–385
"(a)
"(1) Pursuant to the Cable Communications Policy Act of 1984 [
"(2) For a variety of reasons, including local franchising requirements and the extraordinary expense of constructing more than one cable television system to serve a particular geographic area, most cable television subscribers have no opportunity to select between competing cable systems. Without the presence of another multichannel video programming distributor, a cable system faces no local competition. The result is undue market power for the cable operator as compared to that of consumers and video programmers.
"(3) There has been a substantial increase in the penetration of cable television systems over the past decade. Nearly 56,000,000 households, over 60 percent of the households with televisions, subscribe to cable television, and this percentage is almost certain to increase. As a result of this growth, the cable television industry has become a dominant nationwide video medium.
"(4) The cable industry has become highly concentrated. The potential effects of such concentration are barriers to entry for new programmers and a reduction in the number of media voices available to consumers.
"(5) The cable industry has become vertically integrated; cable operators and cable programmers often have common ownership. As a result, cable operators have the incentive and ability to favor their affiliated programmers. This could make it more difficult for noncable-affiliated programmers to secure carriage on cable systems. Vertically integrated program suppliers also have the incentive and ability to favor their affiliated cable operators over nonaffiliated cable operators and programming distributors using other technologies.
"(6) There is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media.
"(7) There is a substantial governmental and First Amendment interest in ensuring that cable subscribers have access to local noncommercial educational stations which Congress has authorized, as expressed in section 396(a)(5) of the Communications Act of 1934 [
"(8) The Federal Government has a substantial interest in making all nonduplicative local public television services available on cable systems because—
"(A) public television provides educational and informational programming to the Nation's citizens, thereby advancing the Government's compelling interest in educating its citizens;
"(B) public television is a local community institution, supported through local tax dollars and voluntary citizen contributions in excess of $10,800,000,000 since 1972, that provides public service programming that is responsive to the needs and interests of the local community;
"(C) the Federal Government, in recognition of public television's integral role in serving the educational and informational needs of local communities, has invested more than $3,000,000,000 in public broadcasting since 1969; and
"(D) absent carriage requirements there is a substantial likelihood that citizens, who have supported local public television services, will be deprived of those services.
"(9) The Federal Government has a substantial interest in having cable systems carry the signals of local commercial television stations because the carriage of such signals is necessary to serve the goals contained in section 307(b) of the Communications Act of 1934 [
"(10) A primary objective and benefit of our Nation's system of regulation of television broadcasting is the local origination of programming. There is a substantial governmental interest in ensuring its continuation.
"(11) Broadcast television stations continue to be an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate.
"(12) Broadcast television programming is supported by revenues generated from advertising broadcast over stations. Such programming is otherwise free to those who own television sets and do not require cable transmission to receive broadcast signals. There is a substantial governmental interest in promoting the continued availability of such free television programming, especially for viewers who are unable to afford other means of receiving programming.
"(13) As a result of the growth of cable television, there has been a marked shift in market share from broadcast television to cable television services.
"(14) Cable television systems and broadcast television stations increasingly compete for television advertising revenues. As the proportion of households subscribing to cable television increases, proportionately more advertising revenues will be reallocated from broadcast to cable television systems.
"(15) A cable television system which carries the signal of a local television broadcaster is assisting the broadcaster to increase its viewership, and thereby attract additional advertising revenues that otherwise might be earned by the cable system operator. As a result, there is an economic incentive for cable systems to terminate the retransmission of the broadcast signal, refuse to carry new signals, or reposition a broadcast signal to a disadvantageous channel position. There is a substantial likelihood that absent the reimposition of such a requirement, additional local broadcast signals will be deleted, repositioned, or not carried.
"(16) As a result of the economic incentive that cable systems have to delete, reposition, or not carry local broadcast signals, coupled with the absence of a requirement that such systems carry local broadcast signals, the economic viability of free local broadcast television and its ability to originate quality local programming will be seriously jeopardized.
"(17) Consumers who subscribe to cable television often do so to obtain local broadcast signals which they otherwise would not be able to receive, or to obtain improved signals. Most subscribers to cable television systems do not or cannot maintain antennas to receive broadcast television services, do not have input selector switches to convert from a cable to antenna reception system, or cannot otherwise receive broadcast television services. The regulatory system created by the Cable Communications Policy Act of 1984 was premised upon the continued existence of mandatory carriage obligations for cable systems, ensuring that local stations would be protected from anticompetitive conduct by cable systems.
"(18) Cable television systems often are the single most efficient distribution system for television programming. A Government mandate for a substantial societal investment in alternative distribution systems for cable subscribers, such as the 'A/B' input selector antenna system, is not an enduring or feasible method of distribution and is not in the public interest.
"(19) At the same time, broadcast programming that is carried remains the most popular programming on cable systems, and a substantial portion of the benefits for which consumers pay cable systems is derived from carriage of the signals of network affiliates, independent television stations, and public television stations. Also cable programming placed on channels adjacent to popular off-the-air signals obtains a larger audience than on other channel positions. Cable systems, therefore, obtain great benefits from local broadcast signals which, until now, they have been able to obtain without the consent of the broadcaster or any copyright liability. This has resulted in an effective subsidy of the development of cable systems by local broadcasters. While at one time, when cable systems did not attempt to compete with local broadcasters for programming, audience, and advertising, this subsidy may have been appropriate, it is so no longer and results in a competitive imbalance between the 2 industries.
"(20) The Cable Communications Policy Act of 1984, in its amendments to the Communications Act of 1934 [
"(21) Cable systems should be encouraged to carry low-power television stations licensed to the communities served by those systems where the low-power station creates and broadcasts, as a substantial part of its programming day, local programming.
"(b)
"(1) promote the availability to the public of a diversity of views and information through cable television and other video distribution media;
"(2) rely on the marketplace, to the maximum extent feasible, to achieve that availability;
"(3) ensure that cable operators continue to expand, where economically justified, their capacity and the programs offered over their cable systems;
"(4) where cable television systems are not subject to effective competition, ensure that consumer interests are protected in receipt of cable service; and
"(5) ensure that cable television operators do not have undue market power vis-a-vis video programmers and consumers."
Sports Programming Migration Study and Report
Applicability of Antitrust Laws to Pub. L. 102–385
Effect of Cable Communications Policy Act of 1984 on Jurisdiction of Federal Communications Commission Respecting Wire or Radio Communications Through Cable Systems
Section 3(b) of
§522. Definitions
For purposes of this subchapter—
(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 person, 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 term "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 significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management 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 generation, 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 without 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 subchapter II of this chapter, except that such facility shall be considered a cable system (other than for purposes of
(8) the term "Federal agency" means any agency of the United States, including the Commission;
(9) the term "franchise" means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to
(10) the term "franchising authority" means any governmental 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 distributor" means a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming;
(14) the term "other programming service" means information 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 governmental entity;
(16) the term "public, educational, or governmental access facilities" means—
(A) channel capacity designated for public, educational, or governmental use; and
(B) facilities and equipment for the use of such channel capacity;
(17) the term "service tier" means a category of cable service 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 subdivision, 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 Commission; and
(20) the term "video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
(June 19, 1934, ch. 652, title VI, §602, as added
Amendments
1996—Par. (6)(B).
Par. (7)(B).
Par. (7)(C) to (E).
Pars. (12) to (20).
1992—
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
Part II—Use of Cable Channels and Cable Ownership Restrictions
Part Referred to in Other Sections
This part is referred to in
§531. Cable channels for public, educational, or governmental use
(a) Authority to establish requirements with respect to designation or use of channel capacity
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 provided in this section.
(b) Authority to require designation for public, educational, or governmental use
A franchising authority may in its request for proposals require as part of a franchise, and may require as part of a cable operator's proposal for a franchise renewal, subject to
(c) Enforcement authority
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 proposed 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) of this section.
(d) Promulgation of rules and procedures
In the case of any franchise under which channel capacity is designated under subsection (b) of this section, 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) Editorial control by cable operator
Subject to
(f) "Institutional network" defined
For purposes of this section, the term "institutional network" means a communication network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers.
(June 19, 1934, ch. 652, title VI, §611, as added
Amendments
1996—Subsec. (e).
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Regulations
Section Referred to in Other Sections
This section is referred to in
§532. Cable channels for commercial use
(a) Purpose
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 available to the public from cable systems in a manner consistent with growth and development of cable systems.
(b) Designation of channel capacity for commercial use
(1) A cable operator shall designate channel capacity for commercial use by persons unaffiliated with the operator in accordance with the following requirements:
(A) An operator of any cable system with 36 or more (but not more than 54) activated channels shall designate 10 percent 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 percent 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 channels.
(D) An operator of any cable system with fewer than 36 activated channels shall not be required to designate channel capacity for commercial use by persons unaffiliated with the operator, unless the cable system is required to provide such channel capacity under the terms of a franchise in effect on October 30, 1984.
(E) An operator of any cable system in operation on October 30, 1984, shall not be required to remove any service actually being provided on July 1, 1984, in order to comply with this section, but shall make channel capacity available for commercial use as such capacity becomes available until such time as the cable operator is in full compliance with this section.
(2) Any Federal agency, State, or franchising authority may not require any cable system to designate channel capacity for commercial use by unaffiliated persons in excess of the capacity specified 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
(4) A cable operator may use any unused channel capacity designated pursuant to this section until the use of such channel capacity 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 profit.
(6) Any channel capacity which has been designated for public, educational, or governmental use may not be considered as designated under this section for commercial use for purpose of this section.
(c) Use of channel capacity by unaffiliated persons; editorial control; restriction on service; rules on rates, terms, and conditions
(1) If a person unaffiliated with the cable operator seeks to use channel capacity designated pursuant to subsection (b) of this section for commercial use, the cable operator shall establish, consistent with the purpose of this section and with rules prescribed by the Commission under paragraph (4), the price, terms, and conditions of such use which are at least sufficient to assure that such use will not adversely affect the operation, financial condition, or market development 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, indecency, 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 October 30, 1984, 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 commercial use of designated channel capacity, including the rate charged for the billing of rates to subscribers and for the collection 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 October 5, 1992, the Commission shall establish rules for determining maximum reasonable rates under subparagraph (A)(i), for establishing terms and conditions under subparagraph (A)(ii), and for providing procedures under subparagraph (A)(iii).
(d) Right of action in district court; relief; factors not to be considered by court
Any person aggrieved by the failure or refusal of a cable operator 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 unreasonable, the court may order such system to make available to such person the channel capacity sought, and further determine the appropriate price, terms, or conditions for such use consistent with subsection (c) of this section, and may award actual damages if it deems such relief 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) Petition to Commission; relief
(1) Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available pursuant to this section 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 determination that the operator has violated this section shall be considered as sufficient for the showing necessary under this subsection. If the 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) of this section, the Commission shall, by rule or order, require such operator to make available such channel capacity under price, terms, and conditions consistent with subsection (c) of this section.
(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 establish any further rule or order necessary to assure that the operator 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 practice 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 diversity of information sources required by this section.
(f) Presumption of reasonableness and good faith
In any action brought under this section in any Federal district 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) of this section are reasonable and in good faith unless shown by clear and convincing evidence to the contrary.
(g) Promulgation of rules
Notwithstanding
(h) Cable service unprotected by Constitution
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 unprotected 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 operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.
(i) Programming from qualified minority or educational programming sources
(1) Notwithstanding the provisions of subsections (b) and (c) of this section, a cable operator required by this section to designate channel capacity for commercial use may use any such channel capacity for the provision of programming from a qualified minority programming 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 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 minority programming source" means a programming source which devotes 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
(3) For purposes of this subsection, the term "qualified educational programming source" means a programming source which devotes substantially all of its programming to educational or instructional 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 acquire programs which are scheduled to be televised, and specifically excludes marketing, promotion, satellite transmission and operational costs, and general administrative costs.
(4) Nothing in this subsection shall substitute for the requirements to carry qualified noncommercial educational television stations as specified under
(j) Single channel access to indecent programming
(1) Within 120 days following October 5, 1992, the Commission shall promulgate regulations designed 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) of this section by—
(A) requiring cable operators to place on a single channel all indecent programs, as identified by program providers, intended 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 writing; and
(C) requiring programmers to inform cable operators if the program would be indecent as defined by Commission regulations.
(2) Cable operators shall comply with the regulations promulgated pursuant to paragraph (1).
(June 19, 1934, ch. 652, title VI, §612, as added
Amendments
1996—Subsec. (c)(2).
1992—Subsec. (a).
Subsec. (b)(5).
"(A) the term 'activated channels' means those channels engineered at the headend of the 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; and
"(B) the term 'commercial use' means the provision of video programming, whether or not for profit."
Subsec. (c)(1).
Subsec. (c)(4).
Subsec. (h).
Subsec. (i).
Subsec. (j).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§533. Ownership restrictions
(a) Cable operator holding license for multichannel distribution or offering satellite service
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 satellite master antenna television services which are owned by a cable operator on October 5, 1992;
(2) may waive the requirements of this paragraph to the extent the Commission determines is necessary to ensure that 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 operator is subject to effective competition as determined under
(b) Repealed. Pub. L. 104–104, title III, §302(b)(1), Feb. 8, 1996, 110 Stat. 124
(c) Promulgation of rules
The Commission may prescribe rules with respect to the ownership or control of cable systems by persons who own or control other media of mass communications which serve the same community served by a cable system.
(d) Regulation of ownership by States or franchising authorities
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 communications 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 jurisdiction by any person (1) because of such person's ownership or control of any other cable system in such jurisdiction; or (2) in circumstances 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) Holding of ownership interests or exercise of editorial control by States or franchising authorities
(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) Enhancement of effective competition
(1) In order to enhance effective competition, the Commission shall, within one year after October 5, 1992, conduct a proceeding—
(A) to prescribe rules and regulations establishing reasonable limits on the number of cable subscribers a person is authorized 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 reasonable limits on the number of channels on a cable system that can be occupied by a video programmer in which a cable operator has an attributable interest; and
(C) to consider the necessity and appropriateness of imposing limitations on the degree to which multichannel video programming distributors may engage in the creation or production 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 operators can unfairly impede, either because of the size of any individual operator or because of joint actions by a group of operators of sufficient size, the flow of video programming from the video programmer to the consumer;
(B) ensure that cable operators affiliated with video programmers do not favor such programmers in determining carriage 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, ownership patterns, and other relationships of the cable television industry, including the nature and market power of the local franchise, the joint ownership of cable systems and video programmers, and the various types of non-equity controlling interests;
(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 development of diverse and high quality video programming.
(g) Combination of interests under prior law
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) "Media of mass communications" defined
For purposes of this section, the term "media of mass communications" shall have the meaning given such term under
(June 19, 1934, ch. 652, title VI, §613, as added
Amendments
1996—Subsec. (a).
Subsec. (b).
1994—Subsec. (b)(2).
1992—Subsec. (a).
Subsec. (d).
Subsecs. (f) to (h).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§534. Carriage of local commercial television signals
(a) Carriage obligations
Each cable operator shall carry, on the cable system of that operator, the signals of local commercial 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
(b) Signals required
(1) In general
(A) A cable operator of a cable system with 12 or fewer usable activated channels shall carry the signals of at least three local commercial television stations, except 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 commercial 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—
(A) under no circumstances shall a cable operator carry a qualified low power station in lieu of a local commercial television station; and
(B) if the cable operator elects to carry an affiliate of a broadcast network (as such term is defined by the Commission 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 feasible, 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 material (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 program 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 Federal Regulations (as in effect on January 1, 1991), or any successor 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 standards 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 Commission prescribes modifications of the standards for television broadcast signals, the Commission shall initiate a proceeding to establish any changes in the signal carriage requirements of cable television systems necessary to ensure cable carriage of such broadcast signals of local commercial television stations which have been changed to conform with such modified standards.
(5) Duplication not required
Notwithstanding paragraph (1), a cable operator shall not be required to carry the signal of any local commercial television station that substantially duplicates the signal of another local commercial television 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 particular 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 fulfillment 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 subscriber of a cable system. Such signals shall be viewable via cable on all television receivers of a subscriber which are connected to a cable system by a cable operator or for which a cable operator provides a connection. If a cable operator authorizes 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 operator 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
(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 station. No deletion or repositioning of a local commercial television station shall occur during a period in which major television ratings services measure the size of audiences of local television stations. The notification provisions of this paragraph shall not be used to undermine or evade the channel positioning or carriage requirements imposed upon cable operators under this section.
(10) Compensation for carriage
A cable operator shall not accept or request monetary payment or other valuable consideration in exchange either for carriage of local commercial television stations in fulfillment of the requirements of this 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 stations which would be considered distant signals under
(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 channels set aside under subsection (b) of this section—
(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 required 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
(d) Remedies
(1) Complaints by broadcast stations
Whenever a local commercial television station believes that a cable operator has failed to meet its obligations under this section, such station shall notify the operator, in writing, of the alleged failure and identify its reasons for believing that the cable operator is obligated to carry the signal of such station or has otherwise failed to comply with the channel positioning or repositioning or other requirements of this section. The cable operator 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 requested or state its reasons for believing that it is not obligated to carry such signal or is in compliance with the channel positioning and repositioning and other requirements of this section. A local commercial television station that is denied carriage or channel positioning or repositioning in accordance with this section by a cable operator may obtain review of such denial by filing a complaint with the Commission. Such complaint shall allege the manner in which such cable operator has failed to meet its obligations and the basis for such allegations.
(2) Opportunity to respond
The Commission shall afford such cable operator an opportunity to present data and arguments 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 carriage of the station and to continue such carriage for at least 12 months. If the Commission determines that the cable operator has fully met the requirements of this section, it shall dismiss the complaint.
(e) Input selector switch rules abolished
No cable operator 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 Regulations, or any comparable device; or
(2) to provide information to subscribers about input selector switches or comparable devices.
(f) Regulations by Commission
Within 180 days after October 5, 1992, the Commission shall, following a rulemaking proceeding, issue regulations implementing the requirements 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 commercials
(1) Carriage pending proceeding
Pending the outcome of the proceeding under paragraph (2), nothing in this chapter 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 October 5, 1992, the Commission, 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, convenience, 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 notice and opportunity for public comment. The Commission shall 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 television stations for purposes of subsection (a) of this section. In the event that the Commission concludes that one or more of such stations are not serving the public interest, convenience, and necessity, the Commission shall allow the licensees of such stations a reasonable period within which to provide different programming, and shall not deny such stations a renewal expectancy solely because their programming consisted predominantly 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
(B) Exclusions
The term "local commercial television station" shall not include—
(i) low power television stations, television translator stations, and passive repeaters which operate pursuant to part 74 of title 47, Code of Federal Regulations, or any successor regulations thereto;
(ii) a television broadcast station that would be considered a distant signal under
(iii) a television broadcast station that does not deliver to the principal headend of a cable system either 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 determined 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 respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. In considering such requests, the Commission may determine that particular communities are part of more than one television 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 coverage 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 community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; 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 pendency of any proceeding pursuant to this subparagraph.
(iv) Within 120 days after the date on which a request is filed under this subparagraph (or 120 days after February 8, 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 conforming to the rules established for Low Power Television Stations contained in part 74 of title 47, Code of Federal Regulations, 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 requirements applicable to television broadcast stations under part 73 of title 47, Code of Federal Regulations, with respect to the broadcast of nonentertainment programming; programming and rates involving political candidates, election issues, controversial issues of public importance, editorials, 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 distance of such full power stations from the low power station'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 political 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 October 5, 1992.
(June 19, 1934, ch. 652, title VI, §614, as added
References in Text
This chapter, referred to in subsec. (g)(1), was in the original "this Act", meaning act June 19, 1934, ch. 652,
Amendments
1996—Subsec. (h)(1)(C)(i).
Subsec. (h)(1)(C)(iv).
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
Application to Pending Requests
Section 301(d)(2) of
"(A) any request pending under section 614(h)(1)(C) of the Communications Act of 1934 (
"(B) any request filed under that section after that date."
Section Referred to in Other Sections
This section is referred to in
§535. Carriage of noncommercial educational television
(a) Carriage obligations
In addition to the carriage requirements set forth in
(b) Requirements to carry qualified stations
(1) General requirement to carry each qualified station
Subject to paragraphs (2) and (3) and subsection (e) of this section, each cable operator shall carry, on the cable system of that cable operator, any qualified local noncommercial educational television station requesting carriage.
(2) Systems with 12 or fewer channels
(A) Notwithstanding 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 educational television station; except that a cable operator of such a system shall comply with subsection (c) of this section and may, in its discretion, carry the signals of other qualified noncommercial educational television stations.
(B) In the case of a cable system described in subparagraph (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 educational 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 system shall not be required to remove any other programming 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 subparagraph.
(3) Systems with 13 to 36 channels
(A) Subject to subsection (c) of this section, a cable operator of a cable system with 13 to 36 usable 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 stations.
(B) In the case of a cable system described in this paragraph 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 station 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 noncommercial educational station affiliated with a State public television network shall not be required to carry the signal of any additional qualified local noncommercial educational television stations affiliated with the same network if the programming of such additional stations is substantially duplicated by the programming of the qualified local noncommercial educational television station receiving carriage.
(D) A cable operator of a system described in this paragraph 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 section, carry the signal of each qualified local noncommercial educational television station requesting carriage, subject to subsection (e) of this section.
(c) Continued carriage of existing stations
Notwithstanding any other provision of this section, all cable operators shall continue to provide carriage to all qualified local noncommercial educational television stations whose signals were carried on their systems as of March 29, 1990. The requirements of this subsection 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 required to add the signals of qualified local noncommercial educational television stations to a cable system under this section may do so, subject to approval by the franchising authority pursuant to
(e) Systems with more than 36 channels
A cable operator of a cable system with a capacity of more than 36 usable activated channels which is required to carry the signals of three 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 television 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 noncommercial 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 retransmit in its entirety the primary video, accompanying audio, and line 21 closed caption transmission of each qualified local noncommercial educational television station whose signal is carried on the cable system, and, to the extent technically feasible, program-related material carried in the vertical blanking interval, or on subcarriers, that may be necessary 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 repositioned 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) assignment of a qualified local noncommercial educational television station to a cable system channel number different from the cable system channel number to which the station was assigned as of March 29, 1990, and (B) deletion of the station from the cable system. The notification provisions of this paragraph shall not be used to undermine or evade the channel positioning or carriage requirements imposed upon cable operators 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 noncommercial 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.
(5) Channel positioning
Each signal carried in fulfillment 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 commercial television broadcast signals.
(i) Payment for carriage prohibited
(1) In general
A cable operator shall not accept monetary payment or other valuable consideration in exchange for carriage of the signal of any qualified local noncommercial educational television station carried in fulfillment of the requirements of this section, except that such a station may be required to bear the cost associated with delivering a good quality signal or a baseband video signal to the principal headend of the cable system.
(2) Distant signal exception
Notwithstanding the provisions of this section, a cable operator shall not be required to add the signal of a qualified local noncommercial educational television station not already carried under the provision of subsection (c) of this section, where such signal would be considered a distant signal for copyright purposes unless such station indemnifies the cable operator for any increased copyright costs resulting from carriage of such signal.
(j) Remedies
(1) Complaint
Whenever a qualified local noncommercial 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 requirements and state the basis for such allegations.
(2) Opportunity to respond
The Commission shall afford such cable operator an opportunity to present data, views, and arguments to establish that the cable operator has complied 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 Commission shall determine whether the cable operator has complied 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 particularity the basis for such findings and order the cable operator to take such remedial action as is necessary to meet such requirements. If the Commission determines that the cable operator has fully complied with such requirements, the Commission shall dismiss the complaint.
(k) Identification of signals
A cable operator shall identify, upon request by any person, those signals carried in fulfillment of the requirements of this section.
(l) Definitions
For purposes of this section—
(1) Qualified noncommercial educational television station
The term "qualified noncommercial educational television station" means any television broadcast station which—
(A)(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 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 receive 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 formula set forth in
(B) is owned and operated by a municipality and transmits predominantly noncommercial programs for educational 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 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.
(2) Qualified local noncommercial educational television station
The term "qualified local noncommercial educational 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 section 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.
(June 19, 1934, ch. 652, title VI, §615, as added
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
Section Referred to in Other Sections
This section is referred to in
§536. Regulation of carriage agreements
(a) Regulations
Within one year after October 5, 1992, the Commission shall establish regulations governing program carriage agreements and related practices between cable operators or other multichannel video programming distributors and video programming vendors. Such regulations shall—
(1) include provisions designed to prevent a cable operator or other multichannel video programming distributor from requiring 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 coercing a video programming vendor to provide, and from retaliating against such a vendor for failing to provide, exclusive rights against other multichannel video programming distributors 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 unaffiliated video programming vendor to compete fairly by discriminating 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 violations of this subsection, including carriage; and
(6) provide penalties to be assessed against any person filing a frivolous complaint pursuant to this section.
(b) "Video programming vendor" defined
As used in this section, the term "video programming vendor" means a person engaged in the production, creation, or wholesale distribution of video programming for sale.
(June 19, 1934, ch. 652, title VI, §616, as added
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
Section Referred to in Other Sections
This section is referred to in
§537. Sales of cable systems
A franchising authority shall, if the franchise requires franchising authority approval of a sale or transfer, have 120 days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with Commission regulations and by the franchising authority. 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.
(June 19, 1934, ch. 652, title VI, §617, as added
Amendments
1996—
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
Section Referred to in Other Sections
This section is referred to in
Part III—Franchising and Regulation
Part Referred to in Other Sections
This part is referred to in
§541. General franchise requirements
(a) Authority to award franchises; public rights-of-way and easements; equal access to service; time for provision of service; assurances
(1) A franchising authority may award, in accordance with the provisions of this subchapter, 1 or more franchises within its jurisdiction; except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise. Any applicant whose application for a second franchise has been denied by a final decision of the franchising authority may appeal such final decision pursuant to the provisions of
(2) Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system 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 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, operation, or removal of such facilities be borne by the cable operator 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 installation, construction, operation, or removal of such facilities by the cable operator.
(3) In awarding a franchise or franchises, a franchising authority shall assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income 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 operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; and
(C) may require adequate assurance that the cable operator has the financial, technical, or legal qualifications to provide cable service.
(b) No cable service without franchise; exception under prior law
(1) Except to the extent provided in paragraph (2) and subsection (f) of this section, a cable operator may not provide cable service without a franchise.
(2) Paragraph (1) shall not require any person lawfully providing 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 subchapter for the provision of telecommunications services; and
(ii) the provisions of this subchapter 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 subchapter that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications 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 telecommunications service, by reason of the failure of such cable operator or affiliate thereof to obtain a franchise or franchise renewal under this subchapter with respect to the provision of such telecommunications service.
(D) Except as otherwise permitted by
(c) Status of cable system as common carrier or utility
Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service.
(d) Informational tariffs; regulation by States; "State" defined
(1) A State or the Commission may require the filing of informational tariffs for any intrastate communications service provided 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 subchapter II of this chapter. Such informational tariffs shall specify the rates, terms, and conditions 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 subchapter shall be construed to affect the authority 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
(e) State regulation of facilities serving subscribers in multiple dwelling units
Nothing in this subchapter shall be construed to affect the authority of any State to license or otherwise regulate any facility or combination of facilities which serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management and which does not use any public right-of-way.
(f) Local or municipal authority as multichannel video programming distributor
No provision of this chapter 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 distributor.
(June 19, 1934, ch. 652, title VI, §621, as added
Amendments
1996—Subsec. (b)(3).
Subsec. (d)(3).
1992—Subsec. (a)(1).
Subsec. (a)(4).
Subsec. (b)(1).
Subsec. (f).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§542. Franchise fees
(a) Payment under terms of franchise
Subject to the limitation of subsection (b) of this section, any cable operator may be required under the terms of any franchise to pay a franchise fee.
(b) Amount of fees per annum
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 period from the operation of the cable system to provide cable services. For purposes of this section, the 12-month period shall be the 12-month period applicable under the franchise for accounting purposes. Nothing in this subsection shall prohibit a franchising authority 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 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) Itemization of subscriber bills
Each cable operator may identify, consistent with the regulations prescribed by the Commission pursuant to
(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 requirements 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) Court actions; reflection of costs in rate structures
In any court action under subsection (c) of this section, the franchising authority shall demonstrate that the rate structure reflects all costs of the franchise fees.
(e) Decreases passed through to subscribers
Any cable operator shall pass through to subscribers the amount of any decrease in a franchise fee.
(f) Itemization of franchise fee in bill
A cable operator may designate that portion of a subscriber's bill attributable to the franchise fee as a separate item on the bill.
(g) "Franchise fee" defined
For the purposes of this section—
(1) the term "franchise fee" includes any tax, fee, or assessment 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 discriminatory against cable operators or cable subscribers);
(B) in the case of any franchise in effect on October 30, 1984, 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 October 30, 1984, 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 awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or
(E) any fee imposed under title 17.
(h) Uncompensated services; taxes, fees and other assessments; limitation on fees
(1) Nothing in this chapter shall be construed to limit any authority of a franchising authority to impose a tax, fee, or other assessment of any kind on any person (other than a cable operator) with respect to cable service or other communications service provided by such person over a cable system for which charges are assessed 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 system.
(i) Regulatory authority of Federal agencies
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.
(June 19, 1934, ch. 652, title VI, §622, as added
Amendments
1996—Subsec. (b).
1992—Subsec. (c).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§543. Regulation of rates
(a) Competition preference; local and Federal regulation
(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
(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 competition—
(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 jurisdiction pursuant to paragraph (6), in accordance with the regulations prescribed by the Commission under subsection (b) of this section; and
(B) the rates for cable programming services shall be subject to regulation by the Commission under subsection (c) of this section.
(3) Qualification of franchising authority
A franchising authority that seeks to exercise the regulatory jurisdiction permitted under paragraph (2)(A) shall file with the Commission a written certification that—
(A) the franchising authority will adopt and administer regulations with respect to the rates subject to regulation under this section that are consistent with the regulations prescribed by the Commission under subsection (b) of this section;
(B) the franchising authority has the legal authority to adopt, and the personnel to administer, such regulations; and
(C) procedural laws and regulations applicable to rate regulation proceedings by such authority provide a reasonable 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 opportunity for the authority to comment, that—
(A) the franchising authority has adopted or is administering regulations with respect to the rates subject to regulation under this section that are not consistent with the regulations prescribed by the Commission under subsection (b) of this section;
(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 interested parties.
If the Commission disapproves a franchising authority's certification, 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 subsection, the Commission shall grant appropriate relief. If the Commission, after the franchising authority has had a reasonable opportunity to comment, determines that the State and local laws and regulations are not in conformance with the regulations prescribed by the Commission under subsection (b) of this section, 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 franchising 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 requirements of paragraph (3). Such new certification shall be effective 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 subsection (b)(3) of this section, to aggregate, on a franchise, system, regional, or company level, their equipment costs into broad categories, such as converter boxes, regardless of the varying levels of functionality of the equipment within each such broad category. Such aggregation shall not be permitted 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 February 8, 1996, the Commission shall issue revisions to the appropriate rules and forms necessary to implement subparagraph (A).
(b) Establishment of basic service tier rate regulations
(1) Commission obligation to subscribers
The Commission 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 system 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 October 5, 1992, the Commission shall prescribe, and periodically thereafter revise, regulations to carry out its obligations under paragraph (1). In prescribing such regulations, 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 procedures in complying with the requirements of subparagraph (A); and
(C) shall take into account the following factors:
(i) the rates for cable systems, if any, that are subject to effective competition;
(ii) the direct costs (if any) of obtaining, transmitting, and otherwise providing signals carried on the basic service tier, including signals and services carried 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 operator from advertising from programming that is carried as part of the basic service tier or from other consideration obtained in connection with the basic service 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 authority on the transactions between cable operators and cable subscribers or any other fee, tax, or assessment of general applicability imposed by a governmental 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 required under the franchise; and
(vii) a reasonable profit, as defined by the Commission consistent with the Commission's obligations to subscribers under paragraph (1).
(3) Equipment
The regulations prescribed by the Commission under this subsection shall include standards to establish, 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 additional television receivers.
(4) Costs of franchise requirements
The regulations prescribed by the Commission under this subsection shall include standards to identify costs attributable to satisfying franchise requirements to support public, educational, and governmental channels or the use of such channels or any other services required under the franchise.
(5) Implementation and enforcement
The regulations prescribed by the Commission under this subsection shall include additional standards, guidelines, and procedures concerning the implementation and enforcement of such regulations, which shall include—
(A) procedures by which cable operators may implement and franchising authorities may enforce the regulations prescribed by the Commission under this subsection;
(B) procedures for the expeditious resolution of disputes 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 selection 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 subscribers receive notice of the availability of the basic service tier required under this section.
(6) Notice
The procedures prescribed by the Commission pursuant to paragraph (5)(A) shall require a cable operator to provide 30 days' advance notice to a franchising authority of any increase proposed in the price to be charged for the basic service tier.
(7) Components of basic tier subject to rate regulation
(A) Minimum contents
Each cable operator of a cable system shall provide its subscribers a separately available basic service tier to which subscription is required 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 requirements of
(ii) Any public, educational, and governmental access 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 subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station.
(B) Permitted additions to basic tier
A cable operator may add additional video programming signals or services to the basic service tier. Any such additional signals or services provided on the basic service tier shall be provided to subscribers at rates determined under the regulations prescribed by the Commission under this subsection.
(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 program basis. A cable operator may not discriminate between subscribers to the basic service tier and other subscribers with regard to the rates charged for video programming offered on a per channel or per program basis.
(B) Exception; limitation
The prohibition in subparagraph (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 October 5, 1992, subject to subparagraph (C).
(C) Waiver
If, in any proceeding initiated at the request of any cable operator, the Commission determines that compliance with the requirements of subparagraph (A) would require the cable operator to increase its rates, 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 Commission determines reasonable and appropriate.
(c) Regulation of unreasonable rates
(1) Commission regulations
Within 180 days after October 5, 1992, the Commission shall, by regulation, establish the following:
(A) criteria prescribed in accordance with paragraph (2) for identifying, in individual cases, rates for cable programming services that are unreasonable;
(B) fair and expeditious procedures for the receipt, consideration, and resolution of complaints from any franchising authority (in accordance with paragraph (3)) alleging that a rate for cable programming services charged by a cable operator violates the criteria prescribed under subparagraph (A), which procedures shall include the minimum showing that shall be required for a complaint to obtain 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 Commission to be unreasonable and to refund such portion of the rates or charges that were paid by subscribers after the filing of the first complaint filed with the franchising authority under paragraph (3) and that are determined to be unreasonable.
(2) Factors to be considered
In establishing the criteria 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 offering comparable cable programming services, taking into account similarities in facilities, regulatory and governmental costs, the number of subscribers, and other relevant 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 programming, cable equipment, and cable services provided by the system, other than programming provided on a per channel or per program basis;
(E) capital and operating costs of the cable system, including the quality and costs of the customer service provided 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 obtained in connection with the cable programming services concerned.
(3) Review of rate changes
The Commission shall review any complaint submitted by a franchising authority after February 8, 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 increase becomes effective it receives subscriber complaints.
(4) Sunset of upper tier rate regulation
This subsection 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 subject 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 predatory, 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 subchapter shall be construed as prohibiting any Federal agency, State, or a franchising authority from—
(1) prohibiting discrimination among subscribers and potential subscribers to cable service, except that no Federal agency, State, or franchising authority may prohibit a cable operator 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 October 5, 1992, and annually thereafter, such financial information as may be needed for purposes of administering and enforcing this section.
(h) Prevention of evasions
Within 180 days after October 5, 1992, the Commission shall, by regulation, establish 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 franchising authority to regulate rates in accordance with such an agreement.
(k) Reports on average prices
The Commission shall annually 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 subject to effective competition under subsection (a)(2) of this section, 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 system;
(B) the franchise area is—
(i) served by at least two unaffiliated multichannel 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 programming services offered by multichannel video programming distributors other than the largest multichannel video programming distributor exceeds 15 percent of the households in the franchise area;
(C) a multichannel video programming distributor operated 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 multichannel video programming distributor using the facilities of such carrier or its affiliate) offers video programming 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 programming services so offered in that area are comparable to the video programming services provided by the unaffiliated cable operator in that area.
(2) The term "cable programming service" means any video programming provided over a cable system, regardless of service 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) of this section 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) "Small cable operator" defined
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
(June 19, 1934, ch. 652, title VI, §623, as added
Amendments
1996—Subsec. (a)(7).
Subsec. (c)(1)(B).
Subsec. (c)(1)(C).
Subsec. (c)(3), (4).
Subsec. (d).
Subsec. (l)(1)(D).
Subsec. (m).
Subsec. (n).
1992—
Effective Date of 1996 Amendment
Section 301(k)(2) of
Effective Date of 1992 Amendment
Section 3(b) of
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Restoration, Retierment and Repricing of Service Previously Eliminated, Retiered, or Repriced
Section 9(b) of
Section Referred to in Other Sections
This section is referred to in
§544. Regulation of services, facilities, and equipment
(a) Regulation by franchising authority
Any franchising authority may not regulate the services, facilities, and equipment provided by a cable operator except to the extent consistent with this subchapter.
(b) Requests for proposals; establishment and enforcement of requirements
In the case of any franchise granted after the effective date of this subchapter, 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 requests for renewal proposals, subject to
(2) subject to
(A) for facilities and equipment; and
(B) for broad categories of video programming or other services.
(c) Enforcement authority respecting franchises effective under prior law
In the case of any franchise in effect on the effective date of this subchapter, the franchising authority may, subject to
(d) Cable service unprotected by Constitution; blockage of premium channel upon request
(1) Nothing in this subchapter 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 Constitution of the United States.
(2) In order to restrict the viewing of of of 1 programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber.
(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 channel" shall mean any pay service offered on a per channel or per program basis, which offers movies rated by the Motion Picture Association of America as X, NC–17, or R.
(e) Technical standards
Within one year after October 5, 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 transmission technology.
(f) Limitation on regulatory powers of Federal agencies, States, or franchising authorities; exceptions
(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 subchapter.
(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 September 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 subchapter; and
(B) any rule, regulation, or order under title 17.
(g) Access to emergency information
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 Commission regulations in subpart G of part 73, title 47, Code of Federal Regulations.
(h) Notice of changes in and comments on services
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 recorded by a designated office of the franchising authority.
(i) Disposition of cable upon termination of service
Within 120 days after October 5, 1992, the Commission shall prescribe rules concerning the disposition, after a subscriber to a cable system terminates service, of any cable installed by the cable operator within the premises of such subscriber.
(June 19, 1934, ch. 652, title VI, §624, as added
References in Text
For "the effective date of this subchapter", referred to in subsecs. (b) and (c), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Amendments
1996—Subsec. (e).
1994—Subsec. (d)(2).
1992—Subsec. (b)(1).
Subsec. (d)(3).
Subsec. (e).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Restoration, Retierment and Repricing of Service Previously Eliminated, Retiered, or Repriced
Section not to be construed to allow a franchising authority, or a State or political subdivision thereof, to require a cable operator to restore, retier or reprice cable service previously eliminated, retiered, or repriced as of Sept. 26, 1984, see section 9(b) of
Section Referred to in Other Sections
This section is referred to in
§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 functions that are disabled or inhibited because of cable scrambling, encoding, or encryption technologies and devices, including 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 manufacturers 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 prevent signal thefts while permitting consumers to benefit from such features and functions in such receivers and recorders; and
(4) compatibility among televisions, video cassette recorders, 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 October 5, 1992, the Commission, in consultation with representatives of the cable industry and the consumer electronics industry, shall report to Congress on means of assuring compatibility between televisions and video cassette recorders and cable systems, consistent with the need to prevent theft of cable service, so that cable subscribers will be able to 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 Commission shall issue such regulations as are necessary to assure such compatibility.
(2) Scrambling and encryption
In issuing the regulations referred to in paragraph (1), the Commission shall determine 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 signals, 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 regulations required by this section, the Commission shall consider—
(A) the need to maximize open competition in the market for all features, functions, protocols, and other product and service options of converter boxes and other cable converters 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 television manufacturers in a manner that, while providing effective protection against theft or unauthorized reception of cable service, will minimize interference with or nullification 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 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 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 reception.
(2) Regulations required
The regulations prescribed by the Commission under this section shall include such regulations 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 receivers and video cassette recorders, including functions 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 generation and display features; and
(ii) to the extent technically and economically feasible, to offer subscribers the option of having all other channels delivered directly to the subscribers' television 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 devices compatible with converter boxes;
(D) to ensure that any standards or regulations developed under the authority of this section to ensure compatibility 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 telecommunications interface equipment, home automation communications, 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 periodically review and, if necessary, modify the regulations issued pursuant to this section in light of any actions taken in response to such regulations and to reflect improvements and changes in cable systems, television receivers, video cassette recorders, and similar technology.
(June 19, 1934, ch. 652, title VI, §624A, as added
Amendments
1996—Subsec. (a)(4).
Subsec. (c)(1)(A) to (C).
Subsec. (c)(2)(D) to (F).
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
§545. Modification of franchise obligations
(a) Grounds for modification by franchising authority; public proceeding; time of decision
(1) During the period a franchise is in effect, the cable operator 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 access facilities or equipment, if the cable operator demonstrates 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 appropriate 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 authority.
(b) Judicial proceedings; grounds for modification by court
(1) Any cable operator whose request for modification under subsection (a) of this section has been denied by a final decision of a franchising authority may obtain modification of such franchise requirements pursuant to the provisions of
(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 granted will be maintained after such modification.
(c) Rearrangement, replacement, or removal of service
Notwithstanding subsections (a) and (b) of this section, a cable operator may, upon 30 days' advance notice to the franchising authority, rearrange, 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
(A) is substantially in excess of the amount of such payment required on the date of the operator's offer to provide such service, and
(B) has not been specifically compensated for through a rate increase or other adjustment.
(d) Rearrangement of particular services from one service tier to another or other offering of service
Notwithstanding subsections (a) and (b) of this section, 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
(e) Requirements for services relating to public, educational, or governmental access
A cable operator may not obtain modification under this section of any requirement for services relating to public, educational, or governmental access.
(f) "Commercially impracticable" defined
For purposes of this section, the term "commercially impracticable" means, with respect to any requirement applicable to a cable operator, that it is commercially impracticable for the operator to comply with such requirement as a result of a change in conditions which is beyond the control of the operator and the nonoccurrence of which was a basic assumption on which the requirement was based.
(June 19, 1934, ch. 652, title VI, §625, as added
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§546. Renewal
(a) Commencement of proceedings; public notice and participation
(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 public 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 proceeding not later than 6 months after the date such notice is submitted.
(2) The cable operator may not invoke the renewal procedures set forth in subsections (b) through (g) of this section 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 authority on its own initiative.
(b) Submission of renewal proposals; contents; time
(1) Upon completion of a proceeding under subsection (a) of this section, a cable operator seeking renewal of a franchise may, on its own initiative or at the request of a franchising authority, submit a proposal for renewal.
(2) Subject to
(3) The franchising authority may establish a date by which such proposal shall be submitted.
(c) Notice of proposal; renewal; preliminary assessment of nonrenewal; administrative review; issues; notice and opportunity for hearing; transcript; written decision
(1) Upon submittal by a cable operator of a proposal to the franchising authority for the renewal of a franchise pursuant to subsection (b) of this section, the franchising authority shall provide prompt public notice of such proposal and, during the 4-month period which begins on the date of the submission of the cable operator's proposal pursuant to subsection (b) of this section, 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, commence an administrative proceeding, after providing prompt public notice of such proceeding, in accordance with paragraph (2) to consider 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;
(C) the operator has the financial, legal, and technical ability 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 account 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 opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection (a) of this section), to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding.
(3) At the completion of a proceeding under this subsection, the franchising authority shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of such decision to the cable operator. Such decision shall state the reasons therefor.
(d) Basis for denial
Any denial of a proposal for renewal that has been submitted in compliance with subsection (b) of this section 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) of this section, pursuant to the record of the proceeding under subsection (c) of this section. A franchising authority may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection (c)(1)(A) of this section or on events considered under subsection (c)(1)(B) of this section in any case in which a violation of the franchise or the events considered under subsection (c)(1)(B) of this section occur after the effective date of this subchapter 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) Judicial review; grounds for relief
(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 requirements of this section, may appeal such final decision or failure pursuant to the provisions of
(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 requirements of this section; or
(B) in the event of a final decision of the franchising authority denying the renewal proposal, the operator has demonstrated 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) of this section on which the denial is based is not supported by a preponderance of the evidence, based on the record of the proceeding conducted under subsection (c) of this section.
(f) Finality of administrative decision
Any decision of a franchising authority on a proposal for renewal shall not be considered final unless all administrative review by the State has occurred or the opportunity therefor has lapsed.
(g) "Franchise expiration" defined
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 October 30, 1984.
(h) Alternative renewal procedures
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 notice 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 submitted in accordance with subsections (a) through (g) of this section.
(i) Effect of renewal procedures upon action to revoke franchise for cause
Notwithstanding the provisions of subsections (a) through (h) of this section, 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.
(June 19, 1934, ch. 652, title VI, §626, as added
References in Text
For "the effective date of this subchapter", referred to in subsec. (d), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Amendments
1992—Subsec. (a).
"(1) identifying the future cable-related community needs and interests; and
"(2) reviewing the performance of the cable operator under the franchise during the then current franchise term."
Subsec. (c)(1).
Subsec. (c)(1)(B).
Subsec. (d).
Subsec. (e)(2)(A).
Subsec. (i).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§547. Conditions of sale
(a) If a renewal of a franchise held by a cable operator is denied 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 allocated to the franchise itself, or
(2) in the case of any franchise existing on the effective date of this subchapter, 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 system or effects a transfer of ownership of the system to another person, 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 subchapter, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer.
(June 19, 1934, ch. 652, title VI, §627, as added
References in Text
For "the effective date of this subchapter", referred to in subsecs. (a)(2) and (b)(2), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
§548. Development of competition and diversity in video programming distribution
(a) Purpose
The purpose of this section is to promote the public interest, convenience, and necessity by increasing competition and diversity in the multichannel video programming market, to increase the availability of satellite cable programming and satellite broadcast programming to persons in rural and other areas not currently able to receive such programming, and to spur the development of communications technologies.
(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 vendor to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor from providing satellite cable programming or satellite broadcast programming to subscribers or consumers.
(c) Regulations required
(1) Proceeding required
Within 180 days after October 5, 1992, 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) of this section.
(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 programming 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 multichannel video programming distributor;
(B) prohibit discrimination by a satellite cable programming vendor in which a cable operator has an attributable interest or by a satellite broadcast programming vendor in the prices, terms, and conditions of sale or delivery of satellite cable programming or satellite broadcast programming among or between cable systems, cable operators, or other multichannel video programming distributors, or their agents or buying groups; except that such a satellite cable programming vendor in which a cable operator has an attributable interest or such a satellite broadcast programming vendor shall not be prohibited from—
(i) imposing reasonable requirements for creditworthiness, offering of service, and financial stability and standards regarding character and technical quality;
(ii) establishing different prices, terms, and conditions to take into account actual and reasonable differences in the cost of creation, sale, delivery, or transmission of satellite cable programming or satellite broadcast programming;
(iii) establishing different prices, terms, and conditions which take into account economies of scale, cost savings, or other direct and legitimate economic benefits reasonably attributable to the number of subscribers served by the distributor; or
(iv) entering into an exclusive contract that is permitted under subparagraph (D);
(C) prohibit practices, understandings, arrangements, and activities, including exclusive contracts for satellite cable programming or satellite broadcast programming between 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 attributable interest or any satellite broadcast programming vendor in which a cable operator has an attributable interest for distribution to persons in areas not served by a cable operator as of October 5, 1992; 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 programming between a cable operator and a satellite cable programming vendor in which a cable operator has an attributable interest or a satellite broadcast programming vendor in which a cable operator has an attributable interest, 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 internal satellite communication of any broadcast network or cable network that is not satellite broadcast programming.
(4) Public interest determinations on exclusive contracts
In determining whether an exclusive contract is in the public interest for purposes of paragraph (2)(D), the Commission shall consider each of the following factors with respect 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 development 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 technologies other than cable;
(C) the effect of such exclusive contract on the attraction of capital investment in the production and distribution of new satellite cable programming;
(D) the effect of such exclusive contract on diversity of programming in the multichannel video programming distribution market; and
(E) the duration of the exclusive contract.
(5) Sunset provision
The prohibition required by paragraph (2)(D) shall cease to be effective 10 years after October 5, 1992, unless the Commission finds, in a proceeding conducted during the last year of such 10-year period, that such prohibition continues to be necessary to preserve and protect competition and diversity in the distribution of video programming.
(d) Adjudicatory proceeding
Any multichannel video programming distributor aggrieved by conduct that it alleges constitutes a violation of subsection (b) of this section, or the regulations of the Commission under subsection (c) of this section, may commence an adjudicatory proceeding at the Commission.
(e) Remedies for violations
(1) Remedies authorized
Upon completion of such adjudicatory 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 programming to the aggrieved multichannel video programming distributor.
(2) Additional remedies
The remedies provided in paragraph (1) are in addition to and not in lieu of the remedies available under subchapter V of this chapter or any other provision of this chapter.
(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 alleged 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 subsection (c) of this section, 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 entered into on or before June 1, 1990, except that the provisions of subsection (c)(2)(C) of this section shall apply for distribution to persons in areas not served by a cable operator.
(2) Limitation on renewals
A contract that was entered into on or before June 1, 1990, but that is renewed or extended after October 5, 1992, shall not be exempt under paragraph (1).
(i) Definitions
As used in this section:
(1) The term "satellite cable programming" has the meaning provided under
(2) The term "satellite cable programming vendor" means a person engaged in the production, creation, or wholesale distribution 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 retransmitted 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
(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 programming vendor in which a cable operator has an attributable interest 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 directors shall not by itself establish an attributable interest by a common carrier in a satellite cable programming vendor (or its parent company).
(June 19, 1934, ch. 652, title VI, §628, as added
Amendments
1996—Subsec. (j).
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
Section Referred to in Other Sections
This section is referred to in
§549. Competitive availability of navigation devices
(a) Commercial consumer availability of equipment used to access services provided by multichannel video programming 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 multichannel video programming and other services offered over multichannel 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) of this section which would jeopardize security of multichannel video programming and other services offered over multichannel video programming systems, or impede the legal rights of a provider of such services to prevent theft of service.
(c) Waiver
The Commission shall waive a regulation adopted under subsection (a) of this section for a limited time upon an appropriate showing 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 appropriate showing, the Commission shall grant any such waiver request 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 products.
(d) Avoidance of redundant regulations
(1) Commercial availability determinations
Determinations made or regulations prescribed by the Commission with respect to commercial availability to consumers 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, before February 8, 1996, shall fulfill the requirements 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 communications equipment, used in conjunction with that service is fully competitive; and
(3) elimination of the regulations would promote competition and the public interest.
(f) Commission's authority
Nothing in this section shall be construed as expanding or limiting any authority that the Commission may have under law in effect before February 8, 1996.
(June 19, 1934, ch. 652, title VI, §629, as added
Part IV—Miscellaneous Provisions
Part Referred to in Other Sections
This part is referred to in
§551. Protection of subscriber privacy
(a) Notice to subscriber regarding personally identifiable information; definitions
(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 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 disclosure which may be made of such information, including an identification of the types of persons to whom the disclosure may be made;
(C) the period during which such information will be maintained by the cable operator;
(D) the times and place at which the subscriber may have access to such information in accordance with subsection (d) of this section; 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) of this section to enforce such limitations.
In the case of subscribers who have entered into such an agreement 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) of this section—
(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 persons within the definition of cable operator in
(b) Collection of personally identifiable information using cable system
(1) Except as provided in paragraph (2), a cable operator shall not use the cable system to collect personally identifiable information 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 subscriber; or
(B) detect unauthorized reception of cable communications.
(c) Disclosure of personally identifiable information
(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 necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.
(2) A cable operator may disclose such information if the disclosure 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) of this section, 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; or
(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 indirectly, the—
(I) extent of any viewing or other use by the subscriber 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.
(d) Subscriber access to information
A cable subscriber shall be provided access to all personally identifiable information regarding that subscriber which is collected 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 subscriber shall be provided reasonable opportunity to correct any error in such information.
(e) Destruction of information
A cable operator shall destroy personally identifiable information 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) of this section or pursuant to a court order.
(f) Civil action in United States district court; damages; attorney's fees and costs; nonexclusive nature of remedy
(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) Regulation by States or franchising authorities
Nothing in this subchapter 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) Disclosure of information to governmental entity pursuant to court order
A governmental entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order only if, in the court proceeding relevant to such court order—
(1) 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
(2) the subject of the information is afforded the opportunity to appear and contest such entity's claim.
(June 19, 1934, ch. 652, title VI, §631, as added
References in Text
For "the effective date of this section", referred to in subsec. (a)(1), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Amendments
1992—Subsec. (a)(2).
Subsec. (c)(1).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§552. Consumer protection and customer service
(a) Franchising authority enforcement
A franchising authority 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 requirements, of the cable operator.
(b) Commission standards
The Commission shall, within 180 days of October 5, 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
(d) Consumer protection laws and customer service agreements
(1) Consumer protection laws
Nothing in this subchapter shall be construed to prohibit any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not specifically preempted by this subchapter.
(2) Customer service requirement agreements
Nothing in this section shall be construed to preclude a franchising authority and a cable operator from agreeing to customer service requirements that exceed the standards established by the Commission under subsection (b) of this section. Nothing in this subchapter shall be construed to prevent the establishment or enforcement of any municipal law or regulation, or any State law, concerning customer 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.
(June 19, 1934, ch. 652, title VI, §632, as added
Amendments
1996—Subsecs. (c), (d).
1992—
"(a) A franchising authority may require, as part of a franchise (including a franchise renewal, subject to
"(1) customer service requirements of the cable operator; and
"(2) construction schedules and other construction-related requirements of the cable operator.
"(b) A franchising authority may enforce any provision, contained in any franchise, relating to requirements described in paragraph (1) or (2) of subsection (a) of this section, to the extent not inconsistent with this subchapter.
"(c) Nothing in this subchapter shall be construed to prohibit any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not inconsistent with this subchapter."
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
§553. Unauthorized reception of cable service
(a) Unauthorized interception or receipt or assistance in intercepting or receiving service; "assist in intercepting or receiving" defined
(1) No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.
(2) For the purpose of this section, the term "assist in intercepting or receiving" shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorized reception of any communications service offered over a cable system in violation of subparagraph (1).
(b) Penalties for willful violation
(1) Any person who willfully violates subsection (a)(1) of this section 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) of this section 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) of this section, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation.
(c) Civil action in district court; injunctions; damages; attorney's fees and costs; regulation by States or franchising authorities
(1) Any person aggrieved by any violation of subsection (a)(1) of this section 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) of this section;
(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 determining the violator's profits, the party aggrieved shall be required to prove only the violator's gross revenue, and the violator shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the violation; 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 subparagraph (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 violation 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 subchapter shall prevent any State or franchising authority from enacting or enforcing laws, consistent with this section, regarding the unauthorized interception or reception of any cable service or other communications service.
(June 19, 1934, ch. 652, title VI, §633, as added
Amendments
1992—Subsec. (b)(2).
Subsec. (b)(3).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in title 18 section 2511.
§554. Equal employment opportunity
(a) Entities within scope of coverage
This section shall apply to any corporation, partnership, association, joint-stock company, or trust engaged primarily in the management or operation of any cable system.
(b) Discrimination prohibited
Equal opportunity in employment shall be afforded by each entity specified in subsection (a) of this section, and no person shall be discriminated against in employment by such entity because of race, color, religion, national origin, age, or sex.
(c) Equal opportunity programs; establishment; maintenance; execution; terms
Any entity specified in subsection (a) of this section shall establish, maintain, and execute a positive continuing program of specific practices designed to ensure equal opportunity in every aspect of its employment 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 organizations of the equal employment opportunity policy and program 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 origin, 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, national origin, age, or sex, from its personnel policies and practices and working conditions; and
(5) conduct a continuing review of job structure and employment practices and adopt positive recruitment, training, job design, and other measures needed to ensure genuine equality of opportunity to participate fully in all its organizational units, occupations, and levels of responsibility.
(d) Revision of rules; required provisions; annual statistical report; notice and comment on amendments
(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 opportunities 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) of this section shall, to the extent possible—
(A) disseminate its equal opportunity program to job applicants, employees, and those with whom it regularly does business;
(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 franchise area;
(D) undertake to offer promotions of minorities and women to positions of greater responsibility;
(E) encourage minority and female entrepreneurs to conduct business with all parts of its operation; and
(F) analyze the results of its efforts to recruit, hire, promote, 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 subsection (a) of this section 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 subparagraph so as to ensure that only employees who are principal decisionmakers 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 listed 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 recruitment 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.
(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) Annual certification of compliance; periodic investigation of employment practices
(1) On an annual basis, the Commission shall certify each entity described in subsection (a) of this section 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) of this section, such entity was in compliance, during the annual period involved, with the requirements of subsections (b), (c), and (d) of this section.
(2) The Commission shall, periodically but not less frequently than every five years, investigate the employment practices of each entity described in subsection (a) of this section, 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) of this section, 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) of this section accurately reflect employee responsibilities in the reported job classifications.
(f) Substantial failure to comply; penalties; notice to public and franchising authorities
(1) If the Commission finds after notice and hearing that the entity involved has willfully 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 subchapter. The failure to obtain certification under subsection (e) of this section shall not itself constitute the basis for a determination of substantial failure to comply with this title. For purposes of this paragraph, the term "repeatedly", 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) of this section or otherwise, to have failed to meet or failed to make best efforts to meet the requirements of this section, or rules under this section, shall be liable to the United States for a forfeiture penalty of $500 for each violation. Each day of a continuing violation shall constitute a separate offense. Any entity defined in subsection (a) of this section shall not be liable for more than 180 days of forfeitures which accrued prior to notification by the Commission of a potential violation. Nothing in this paragraph shall limit the forfeiture imposed on any person as a result of any violation that continues subsequent to such notification. In addition, any person liable for such penalty may also have any license under this chapter for cable auxiliary relay service suspended until the Commission determines that the failure involved has been corrected. Whoever knowingly makes any false statement or submits documentation which he knows to be false, pursuant to an application for certification under this section shall be in violation of this section.
(3) The provisions of paragraphs (3) and (4), and the last 2 sentences of paragraph (2), of
(4) The Commission shall provide for notice to the public and appropriate franchising authorities of any penalty imposed under this section.
(g) Discrimination complaints; investigation; enforcement
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) of this section 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) "Cable operator" defined; owners of multiple unit dwellings
(1) For purposes of this section, the term "cable operator" includes any operator of any satellite master antenna television system, including a system described in
(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 multiple 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) Regulatory powers of States and franchising authorities; nonexclusive nature of remedies and enforcement provisions; covered franchises
(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 consistent with the requirements of this section, including any requirement which affords equal employment opportunity protection for employees;
(B) to establish or enforce any provision requiring or encouraging any cable operator to conduct business with enterprises which are owned or controlled by members of minority groups (as defined in
(C) to enforce any requirement of a franchise in effect on the effective date of this subchapter.
(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 operator, whether operating pursuant to a franchise granted before, on, or after October 30, 1984.
(June 19, 1934, ch. 652, title VI, §634, as added
References in Text
The Cable Television Consumer Protection and Competition Act of 1992, referred to in subsec. (d)(1), is
For "the effective date of this subchapter", referred to in subsec. (i)(1)(C), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Amendments
1994—Subsec. (h)(1).
1992—Subsec. (d)(1).
Subsec. (d)(3).
"(A) officials and managers;
"(B) professionals;
"(C) technicians;
"(D) sales persons;
"(E) office and clerical personnel;
"(F) skilled craft persons;
"(G) semiskilled operatives;
"(H) unskilled laborers; and
"(I) service workers.
The report shall include the number of minorities and women in the relevant labor market for each of the above categories. The statistical report shall be available to the public at the central office and at every location where more than 5 full-time employees are regularly assigned to work."
Subsec. (f)(2).
Subsec. (h)(1).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Congressional Findings: Employment of Women and Minorities in Management Positions in Television Industry
Section 22(a) of
"(1) despite the existence of regulations governing equal employment opportunity, females and minorities are not employed in significant numbers in positions of management authority in the cable and broadcast television industries;
"(2) increased numbers of females and minorities in positions of management authority in the cable and broadcast television industries advances the Nation's policy favoring diversity in the expression of views in the electronic media; and
"(3) rigorous enforcement of equal employment opportunity rules and regulations is required in order to effectively deter racial and gender discrimination."
Study and Report on Effect and Operation of Amendments by Section 22 of Pub. L. 102–385
Section 22(g) of
Section Referred to in Other Sections
This section is referred to in
§555. Judicial proceedings
(a) Actions to review determinations by franchising authorities
Any cable operator adversely affected by any final determination made by a franchising authority under
(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 jurisdiction over the parties.
(b) Available relief
The court may award any appropriate relief consistent with the provisions of the relevant section described in subsection (a) of this section and with the provisions of subsection (a) of this section.
(c) Review of constitutionality of sections 534 and 535
(1) Notwithstanding any other provision of law, any civil action challenging the constitutionality of
(2) Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of three judges in an action under paragraph (1) holding
(June 19, 1934, ch. 652, title VI, §635, as added
Amendments
1992—Subsec. (a).
Subsec. (b).
Subsec. (c).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§555a. Limitation of franchising authority liability
(a) Suits for damages prohibited
In any court proceeding pending on or initiated after October 5, 1992, involving any claim against a franchising authority or other governmental entity, or any official, member, employee, or agent of such authority or entity, arising from the regulation of cable service 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 Federal, State, or local law, shall be limited to injunctive relief and declaratory relief.
(b) Exception for completed cases
The limitation contained in subsection (a) of this section 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 section shall be construed as limiting the relief authorized with respect to any claim against a franchising authority or other governmental 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.
(June 19, 1934, ch. 652, title VI, §635A, as added
Effective Date
Section effective 60 days after Oct. 5, 1992, see section 28 of
§556. Coordination of Federal, State, and local authority
(a) Regulation by States, political subdivisions, State and local agencies, and franchising authorities
Nothing in this subchapter shall be construed to affect any authority of any State, political subdivision, or agency thereof, or franchising authority, regarding matters of public health, safety, and welfare, to the extent consistent with the express provisions of this subchapter.
(b) State jurisdiction with regard to cable services
Nothing in this subchapter shall be construed to restrict a State from exercising jurisdiction with regard to cable services consistent with this subchapter.
(c) Preemption
Except as provided in
(d) "State" defined
For purposes of this section, the term "State" has the meaning given such term in
(June 19, 1934, ch. 652, title VI, §636, as added
Amendments
1996—Subsec. (d).
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
§557. Existing franchises
(a) The provisions of—
(1) any franchise in effect on the effective date of this subchapter, including any such provisions which relate to the designation, use, or support for the use of channel capacity for public, educational, or governmental use, and
(2) any law of any State (as defined in
shall remain in effect, subject to the express provisions of this subchapter, 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) of this section and other provisions of this subchapter, a franchise shall be considered in effect on the effective date of this subchapter if such franchise was granted on or before such effective date.
(June 19, 1934, ch. 652, title VI, §637, as added
References in Text
For "the effective date of this subchapter" and "such effective date", referred to in subsecs. (a) and (b), as 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Amendments
1996—Subsec. (a)(2).
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
Section Referred to in Other Sections
This section is referred to in
§558. Criminal and civil liability
Nothing in this subchapter 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, incitement, 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 obtained under
(June 19, 1934, ch. 652, title VI, §638, as added
Amendments
1992—
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
§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 or imprisoned not more than 2 years, or both.
(June 19, 1934, ch. 652, title VI, §639, as added
Amendments
1996—
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
§560. Scrambling of cable channels for nonsubscribers
(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) "Scramble" defined
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 understandable manner.
(June 19, 1934, ch. 652, title VI, §640, as added
§561. Scrambling of sexually explicit adult video service programming
(a) Requirement
In providing sexually explicit adult programming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, 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 programming distributor complies with the requirement set forth in subsection (a) of this section, 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) "Scramble" defined
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 understandable manner.
(June 19, 1934, ch. 652, title VI, §641, as added
Effective Date
Section 505(b) of
Part V—Video Programming Services Provided by Telephone Companies
§571. Regulatory treatment of video programming 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 subchapter III of this chapter and
(2) Common carriage of video traffic
To the extent that a common carrier is providing transmission of video programming on a common carrier basis, such carrier shall be subject to the requirements of subchapter II of this chapter and
(3) Cable systems and open video systems
To the extent 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 subchapter, unless such programming is provided by means of an open video system for which the Commission has approved a certification under
(B) if such programming is provided by means of an open video system for which the Commission has approved a certification under
(4) Election to operate as open video system
A common 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
(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 subchapter II of this chapter, 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
(June 19, 1934, ch. 652, title VI, §651, as added
§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 otherwise acquire directly or indirectly more than a 10 percent financial interest, or any management interest, in any cable operator providing 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, controlled 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 operator whose telephone service area and cable franchise area, respectively, 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, management 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 system, in the aggregate with any other system in which such 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) of this section, a local exchange 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
Notwithstanding subsections (a) and (c) of this section, 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 (hereinafter in this paragraph referred to as "the subject cable system"), 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 subscribers 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 operators existed on May 1, 1995; and
(D) the system with the most subscribers in the television 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) of this section 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 nonurbanized area as of June 1, 1995;
(B) the cable system is not owned by, or under common 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
Notwithstanding subsections (a) and (c) of this section, 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 exchange carrier's telephone service area that serves no more 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) of this section 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 economically viable if such provisions were enforced; or
(iii) the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest 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) "Telephone service area" defined
For purposes of this section, the term "telephone service area" when used in connection with a common carrier subject in whole or in part to subchapter II of this chapter means the area within which such carrier provided telephone exchange service as of January 1, 1993, but if any common carrier after such date transfers its telephone exchange service facilities to another common carrier, the area to which such facilities 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.
(June 19, 1934, ch. 652, title VI, §652, as added
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "subsection".
§573. Establishment of open video systems
(a) Open video systems
(1) Certificates of compliance
A local exchange carrier 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 operator 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 section if the operator of such system certifies to the Commission that such carrier complies with the Commission's regulations under subsection (b) of this section and the Commission approves such certification. 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 certification.
(2) Dispute resolution
The Commission shall have the authority to resolve disputes under this section and the regulations prescribed thereunder. Any such dispute shall be resolved within 180 days after notice of such dispute is submitted to the Commission. At that time or subsequently in a separate damages proceeding, the Commission may, in the case of any violation 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 chapter.
(b) Commission actions
(1) Regulations required
Within 6 months after February 8, 1996, the Commission shall complete all actions necessary (including any reconsideration) to prescribe regulations that—
(A) except as required pursuant to
(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 activated 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 provider (including the local exchange carrier's video programming 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 concerning sports exclusivity (47 C.F.R. 76.67), network nonduplication (47 C.F.R. 76.92 et seq.), and syndicated exclusivity (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 (including advertising) provided by the operator to subscribers for the purposes of selecting programming on the open video system, or in the way such material or information is presented to subscribers;
(ii) require an operator of an open video system to ensure that video programming providers or copyright holders (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 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 negotiating mutually agreeable terms and conditions with over-the-air broadcast stations and other unaffiliated video programming 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 systems
(1) In general
Any provision that applies to a cable operator under—
(A) sections 533 (other than subsection (a) thereof), 536, 543(f), 548, 551, and 554 of this title, shall apply,
(B)
(C)
to any operator of an open video system for which the Commission has approved a certification under this section.
(2) Implementation
(A) Commission action
In the rulemaking proceeding to prescribe the regulations required by subsection (b)(1) of this section, the Commission shall, to the extent possible, impose obligations that are no greater or lesser than the obligations 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 February 8, 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
(3) Regulatory streamlining
With respect to the establishment and operation of an open video system, the requirements of this section shall apply in lieu of, and not in addition to, the requirements of subchapter II of this chapter.
(4) Treatment as cable operator
Nothing in this chapter precludes a video programming provider making use of an open video system from being treated as an operator of a cable system for purposes of
(d) "Telephone service area" defined
For purposes of this section, the term "telephone service area" when used in connection with a common carrier subject in whole or in part to subchapter II of this chapter means the area within which such carrier is offering telephone exchange service.
(June 19, 1934, ch. 652, title VI, §653, as added
Section Referred to in Other Sections
This section is referred to in
SUBCHAPTER VI—MISCELLANEOUS PROVISIONS
§601. Interstate Commerce Commission and Postmaster General; duties, powers, and functions transferred to Commission
(a) All duties, powers, and functions of the Interstate Commerce Commission under
(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 imposed upon and vested in the Commission.
(June 19, 1934, ch. 652, title VII, §701, formerly title VI, §601,
Codification
In subsec. (a), "subtitle IV of title 49" substituted for "the Interstate Commerce Act and all Acts amendatory thereof or supplemental thereto [
Transfer of Functions
Office of Postmaster General of Post Office Department abolished and functions, powers, and duties of Postmaster General transferred to United States Postal Service by
Abolition of Interstate Commerce Commission and Transfer of Functions
Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise provided in
§§602, 603. Repealed. Pub. L. 103–414, title III, §304(a)(13), Oct. 25, 1994, 108 Stat. 4297
Section 602, acts June 19, 1934, ch. 652, title VII, §702(a), (b), formerly title VI, §602(a), (b),
Section 603, act June 19, 1934, ch. 652, title VII, §703, formerly title VI, §603,
§604. Effect of transfer
(a) Orders, determinations, rules, regulations, permits, contracts, licenses, and privileges
All orders, determinations, rules, regulations, permits, contracts, 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 chapter or in the exercise of duties, powers, or functions transferred to the Commission by this chapter, and which are in effect at the time this section takes effect, shall continue in effect until modified, terminated, superseded, or repealed by the Commission or by operation of law.
(b) Availability of records
All records transferred to the Commission under this chapter 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 Interstate Commerce Commission with respect to common carriers engaged in radio or wire communication, and all orders of the Interstate Commerce Commission with respect to such valuations and determinations, shall have the same force and effect as though made by the Commission under this chapter.
(June 19, 1934, ch. 652, title VII, §704, formerly title VI, §604,
References in Text
This chapter, referred to in text, was in the original "this Act", meaning act June 19, 1934, ch. 652,
Amendments
1994—Subsecs. (b), (c).
Subsec. (d).
Transfer of Functions
Office of Postmaster General of Post Office Department abolished and functions, powers, and duties of Postmaster General transferred to United States Postal Service by
Abolition of Interstate Commerce Commission and Transfer of Functions
Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise provided in
§605. Unauthorized publication or use of communications
(a) Practices prohibited
Except as authorized by
(b) Exceptions
The provisions of subsection (a) of this section shall not apply to the interception 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 individuals, and
(ii) such authorization is available to the individual involved from the appropriate agent or agents; or
(B) a marketing system described in subparagraph (A) is established and the individuals receiving such programming has obtained authorization for private viewing under that system.
(c) Scrambling of Public Broadcasting Service programming
No person shall encrypt or continue to encrypt satellite delivered programs included in the National Program Service of the Public Broadcasting Service and intended for public viewing by retransmission 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 prohibit additional encrypted satellite transmissions of the same program.
(d) Definitions
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 unauthorized receipt of such programming by persons without authorized equipment which is designed to eliminate the effects of such modification or alteration;
(4) the term "private viewing" means the viewing for private use in an individual's dwelling unit by means of equipment, owned or operated by such individual, capable of receiving 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 in such individual's dwelling unit of any programming for which the individual has not obtained authorization for that use; and
(6) the term "any person aggrieved" shall include any person 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) of this section, shall also include any person engaged in the lawful manufacture, distribution, or sale of equipment necessary to authorize or receive satellite cable programming.
(e) Penalties; civil actions; remedies; attorney's fees and costs; computation of damages; regulation by State and local authorities
(1) Any person who willfully violates subsection (a) of this section shall be fined not more than $2,000 or imprisoned for not more than 6 months, or both.
(2) Any person who violates subsection (a) of this section willfully and for purposes of direct or indirect 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 conviction and shall 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) of this section or paragraph (4) of this subsection may bring a civil action in a United States district court or in any other court of competent jurisdiction.
(B) The court—
(i) may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of subsection (a) of this section;
(ii) may award damages as described in subparagraph (C); and
(iii) shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails.
(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 determining the violator's profits, the party aggrieved shall be required to prove only the violator's gross revenue, and the violator shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the violation; or
(II) the party aggrieved may recover an award of statutory damages for each violation of subsection (a) of this section involved in the action 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 commercial 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 subsection (a) of this section.
(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 violation 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, imports, 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 unauthorized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by subsection (a) of this section, shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both. For purposes of all penalties and remedies established for violations of this paragraph, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation.
(5) The penalties under this subsection shall be in addition to those prescribed under any other provision of this subchapter.
(6) Nothing in this subsection shall prevent any State, or political 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 subsection (a) of this section.
(f) Rights, obligations, and liabilities under other laws unaffected
Nothing in this section shall affect any right, obligation, or liability under title 17, any rule, regulation, or order thereunder, or any other applicable Federal, State, or local law.
(g) Universal encryption standard
The Commission shall initiate an inquiry concerning the need for a universal encryption standard that permits decryption of satellite cable programming intended for private viewing. In conducting such inquiry, the Commission shall take into account—
(1) consumer costs and benefits of any such standard, including 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, including 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 Commission procedures necessary for establishment of such standards.
(h) Rulemaking for encryption standard
If the Commission finds, based on the information gathered from the inquiry required by subsection (g) of this section, that a universal encryption standard is necessary and in the public interest, the Commission shall initiate a rulemaking to establish such a standard.
(June 19, 1934, ch. 652, title VII, §705, formerly title VI, §605,
Amendments
1996—Subsec. (e)(4).
1994—Subsec. (d)(6).
Subsec. (e)(3)(A).
Subsec. (f).
Subsec. (g).
Subsec. (h).
1988—Subsecs. (c), (d).
Subsec. (d)(6).
Subsec. (e).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (e)(3)(A).
Subsec. (e)(3)(B).
Subsec. (e)(3)(C)(i)(II).
Subsec. (e)(3)(C)(ii).
Subsec. (e)(3)(C)(iii).
Subsec. (e)(4).
Subsec. (f).
Subsec. (g).
1984—
1982—
1968—
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1984 Amendment
Section 5(b) of
Amendment by
Section Referred to in Other Sections
This section is referred to in
§606. War powers of President
(a) Priority communications
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 communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier subject to this chapter. 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 authorized to issue orders 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 for preference or priority herein 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 compliance with such order or direction.
(b) Obstruction of interstate or foreign communications
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 communication by radio or wire. The President is authorized, whenever in his judgment the public interest requires, to employ the armed forces of the United States to prevent any such obstruction or retardation of communication: Provided, That nothing in this section shall be construed to repeal, modify, or affect either
(c) Suspension or amendment of rules and regulations applicable to certain emission stations or devices
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 interest 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 radiations 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 removal therefrom of its apparatus and equipment, or he may authorize 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 compensation 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 authorize the use or control of any station or device and/or its apparatus and equipment, may be exercised in the Canal Zone.
(d) Suspension or amendment of rules and regulations applicable to wire communications; closing of facilities; Government use of facilities
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 applicable 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) Compensation
The President shall ascertain the just compensation for such use or control and certify the amount ascertained to Congress 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 sum 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 section 1346 or
(f) Affect on State laws and powers
Nothing in subsection (c) or (d) of this section shall be construed to amend, repeal, impair, or affect existing laws or powers of the States in relation 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) Limitations upon Presidential power
Nothing in subsection (c) or (d) of this section shall be construed to authorize the President to make any amendment to the rules and regulations of the Commission which the Commission would not be authorized by law to make; and nothing in subsection (d) of this section shall be construed to authorize the President to take any action the force and effect of which shall continue beyond the date after which taking of such action would not have been authorized.
(h) Penalties
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 President's authority under this section, or who willfully causes or suffers 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, association, 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 foreign 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.
(June 19, 1934, ch. 652, title VII, §706, formerly title VI, §606,
References in Text
For definition of Canal Zone, referred to in subsec. (c), see
Codification
In subsec. (e), "section 1346 or
Amendments
1951—Subsec. (c). Act Oct. 24, 1951, §1, clarified scope of President's powers to use, control, and close radio facilities of all kinds which might be useful to an enemy for navigational purposes.
Subsec. (h). Act Oct. 24, 1951, §2, added subsec. (h).
1947—Subsec. (h). Act July 25, 1947, struck out subsec. (h) which related to modification of certain sections of this title until six months after termination of World War II for the protection of vessels in wartime.
1942—Subsecs. (d), (e). Act Jan. 26, 1942, §1, added subsec. (d) and redesignated former subsec. (d) as (e).
Subsecs. (f), (g). Act Jan. 26, 1942, §2, added subsecs. (f) and (g).
Subsec. (h). Act Dec. 29, 1942, added subsec. (h).
Termination of War and Emergencies
Act July 25, 1947, ch. 327, §3,
Executive Order No. 8964
Ex. Ord. No. 8964, eff. Dec. 10, 1941, 6 F.R. 6367, relating to the use and control of radio stations and preference or priority of communications was revoked by Ex. Ord. No. 9831, eff. Feb. 24, 1947, 12 F.R. 1363.
Ex. Ord. No. 9831. Board of War Communications Abolished
Ex. Ord. No. 9831, eff. Feb. 24, 1947, 12 F.R. 1363, provided:
By virtue of the authority vested in me by the Constitution and statutes, including the Communications Act of 1934 (
1. The Board of War Communications, established as the Defense Communications Board by Executive Order No. 8546 of September 24, 1940, is abolished, and all property and records thereof are transferred to the Federal Communications Commission.
2. Executive Orders Nos. 8546 of September 24, 1940, 8960 of December 6, 1941, 8964 of December 10, 1941, 9089 of March 6, 1942, and 9183 of June 15, 1942, are revoked.
Harry S Truman.
Executive Order No. 10312
Ex. Ord. No. 10312, eff. Dec. 10, 1951, 16 F.R. 12452, as amended by Ex. Ord. No. 10438, eff. Mar. 13, 1953, 18 F.R. 1491; Ex. Ord. No. 10773, eff. July 1, 1958, 23 F.R. 5061; Ex. Ord. No. 10782, eff. Sept. 6, 1958, 23 F.R. 6971; Ex. Ord. No. 11051, eff. Sept. 27, 1962, 27 F.R. 9683, relating to delegation of authority to the Federal Communications Commission was revoked by Ex. Ord. No. 11490, eff. Oct. 28, 1969, 34 F.R. 17567.
Executive Order No. 10705
Ex. Ord. No. 10705, Apr. 17, 1957, 22 F.R. 2729, as amended by Ex. Ord. No. 10773, July 1, 1958, 23 F.R. 5061; Ex. Ord. No. 10782, Sept. 6, 1958, 23 F.R. 6971; Ex. Ord. No. 11051, Sept. 27, 1962, 27 F.R. 9683; Ex. Ord. No. 11556, Sept. 4, 1970, 35 F.R. 14193, which related to the delegation of authority to the Director of the Office of Telecommunications Policy, was revoked by Ex. Ord. No. 12046, Mar. 27, 1978, 43 F.R. 13349, set out as a note under
Section Referred to in Other Sections
This section is referred to in
§607. Effective date of chapter
This chapter shall take effect upon the organization of the Commission, except that this section and
(June 19, 1934, ch. 652, title VII, §707, formerly title VI, §607,
References in Text
This chapter, referred to in text, was in the original "this Act", meaning act June 19, 1934, ch. 652,
§608. Separability
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby.
(June 19, 1934, ch. 652, title VII, §708, formerly title VI, §608,
§609. Short title
This chapter may be cited as the "Communications Act of 1934."
(June 19, 1934, ch. 652, title VII, §709, formerly title VI, §609,
References in Text
This chapter, referred to in text, was in the original "this Act", meaning act June 19, 1934, ch. 652,
Short Title of 1999 Amendments
Short Title of 1998 Amendment
Short Title of 1996 Amendment
Short Title of 1992 Amendments
Short Title of 1991 Amendment
Short Title of 1990 Amendments
Short Title of 1988 Amendments
Short Title of 1984 Amendment
Short Title of 1983 Amendments
Short Title of 1982 Amendment
Short Title of 1981 Amendments
Short Title of 1978 Amendments
Short Title of 1976 Amendment
Short Title of 1975 Amendment
Short Title of 1971 Amendment
Short Title of 1970 Amendment
Short Title of 1969 Amendment
Short Title of 1967 Amendment
Short Title of 1960 Amendment
Short Title of 1952 Amendment
Act July 16, 1952, ch. 879, §1,
§610. Telephone service for disabled
(a) Establishment of regulations
The Commission shall establish such regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing.
(b) Hearing aid compatibility requirements
(1) Except as provided in paragraphs (2) and (3), the Commission shall require that—
(A) all essential telephones, and
(B) all telephones manufactured in the United States (other than for export) more than one year after August 16, 1988, or imported for use in the United States more than one year after August 16, 1988,
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.
(2)(A) The initial regulations prescribed by the Commission under paragraph (1) of this subsection after August 16, 1988, shall exempt from the requirements established pursuant to paragraph (1)(B) of this subsection only—
(i) telephones used with public mobile services;
(ii) telephones used with private radio services;
(iii) cordless telephones; and
(iv) secure telephones.
(B) The exemption provided by such regulations for cordless telephones shall not apply with respect to cordless telephones manufactured or imported more than three years after August 16, 1988.
(C) The Commission shall periodically assess the appropriateness of continuing in effect the exemptions provided by such regulations for telephones used with public mobile services and telephones used with private radio services. 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 paragraph (1)(B) is technologically feasible for the telephones to which the exemption applies; and
(iv) compliance with the requirements of paragraph (1)(B) would not increase costs to such an extent that the telephones to which the exemption applies could not be successfully marketed.
(3) The Commission may, upon the application of any interested 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 proceeding, 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 telephones, technology, or service could not be successfully marketed. In any proceeding under this paragraph to grant a waiver from the 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 continuing need for any waiver granted pursuant to this paragraph.
(4) For purposes of this subsection—
(A) the term "essential telephones" means only coin-operated telephones, telephones provided for emergency use, and other telephones frequently needed for use by persons using such hearing aids;
(B) the term "public mobile services" means air-to-ground radiotelephone services, cellular radio telecommunications services, offshore radio, rural radio service, public land mobile telephone service, and other common carrier radio communication services covered by part 22 of title 47 of the Code of Federal Regulations;
(C) the term "private radio services" means private land mobile radio services 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 transmission of classified or sensitive voice communications.
(c) Technical standards
The Commission shall establish or approve such technical standards as are required to enforce this section.
(d) Labeling of packaging materials for equipment
The Commission shall establish such requirements for the labeling of packaging materials for equipment as are needed to provide adequate information to consumers on the compatibility between telephones and hearing aids.
(e) Costs and benefits; encouragement of use of currently available technology
In any rulemaking to implement the provisions of this section, the Commission shall specifically consider the costs and benefits to all telephone users, including persons with and without hearing impairments. The Commission shall ensure that regulations adopted to implement this section encourage the use of currently available technology and do not discourage or impair the development of improved technology.
(f) Periodic review of regulations; retrofitting
The Commission shall periodically review the regulations established pursuant to this section. Except for coin-operated telephones and telephones provided for emergency use, the Commission may not require the retrofitting of equipment to achieve the purposes of this section.
(g) Recovery of reasonable and prudent costs
Any common carrier or connecting carrier may provide specialized 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 reasonable and prudent costs not charged directly to users of such equipment.
(h) State enforcement
The Commission shall delegate to each State commission the authority to enforce within such State compliance with the specific regulations that the Commission issues under subsections (a) and (b) of this section, conditioned upon the adoption and enforcement of such regulations by the State commission.
(June 19, 1934, ch. 652, title VII, §710, formerly title VI, §610, as added
Amendments
1994—Subsec. (f).
1988—Subsec. (b).
Subsec. (f).
Congressional Findings for 1988 Amendment
Section 2 of
"(1) to the fullest extent made possible by technology and medical science, hearing-impaired persons should have equal access to the national telecommunications network;
"(2) present technology provides effective coupling of telephones to hearing aids used by some severely hearing-impaired persons for communicating by voice telephone;
"(3) anticipated improvements in both telephone and hearing aid technologies promise greater access in the future; and
"(4) universal telephone service for hearing-impaired persons will lead to greater employment opportunities and increased productivity."
Congressional Findings
Section 2 of
"(1) all persons should have available the best telephone service which is technologically and economically feasible;
"(2) currently available technology is capable of providing telephone service to some individuals who, because of hearing impairments, require telephone reception by means of hearing aids with induction coils, or other inductive receptors;
"(3) the lack of technical standards ensuring compatibility between hearing aids and telephones has prevented receipt of the best telephone service which is technologically and economically feasible; and
"(4) adoption of technical standards is required in order to ensure compatibility between telephones and hearing aids, thereby accommodating the needs of individuals with hearing impairments."
§611. Closed-captioning of public service announcements
Any television public service announcement that is produced or funded in whole or in part by any agency or instrumentality of Federal Government shall include closed captioning of the verbal content of such announcement. A television broadcast station licensee—
(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 announcement without transmitting a closed caption unless the licensee intentionally fails to transmit the closed caption that was included with the announcement.
(June 19, 1934, ch. 652, title VII, §711, as added
Amendments
1990—
Effective Date
Section effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of
§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 exclusivity rules with respect to the delivery of syndicated programming (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 performance or display of a work which violates such Commission rules shall be subject to the remedies, sanctions, and penalties provided by subchapter V of this chapter and
(June 19, 1934, ch. 652, title VII, §712, as added
Amendments
1994—Subsec. (a).
Effective Date
Section effective Jan. 1, 1989, see section 206 of
§613. Video programming accessibility
(a) Commission inquiry
Within 180 days after February 8, 1996, the Federal Communications Commission shall complete an inquiry to ascertain the level at which video programming is closed captioned. Such inquiry shall examine the extent to which existing or previously published programming is closed captioned, the size of the video programming provider or programming owner providing closed captioning, the size of the market served, the relative audience shares achieved, or any other related factors. The Commission shall submit to the Congress a report on the results of such inquiry.
(b) Accountability criteria
Within 18 months after February 8, 1996, 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 subsection (d) of this section; 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 provision of closed captions, except as provided in subsection (d) of this section.
(c) Deadlines for captioning
Such regulations shall include an appropriate schedule of deadlines for the provision of closed captioning of video programming.
(d) Exemptions
Notwithstanding subsection (b) of this section—
(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 programming;
(2) a provider of video programming or the owner of any program carried by the provider shall not be obligated to supply closed captions if such action would be inconsistent with contracts in effect on February 8, 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 requirements of this section, and the Commission may grant such petition upon a showing that the requirements contained in this section would result in an undue burden.
(e) Undue burden
The term "undue burden" means significant difficulty or expense. In determining whether the closed captions necessary to comply with the requirements of this paragraph would result in an undue economic burden, the factors to be considered include—
(1) the nature and cost of the closed captions for the programming;
(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 descriptions inquiry
Within 6 months after February 8, 1996, the Commission shall commence an inquiry to examine the use of video descriptions on video programming in order to ensure the accessibility of video programming to persons with visual impairments, and report to Congress on its findings. The Commission's report shall assess appropriate methods and schedules for phasing video descriptions into the marketplace, technical and quality standards for video descriptions, a definition of programming for which video descriptions would apply, and other technical and legal issues that the Commission deems appropriate.
(g) Video description
For purposes of this section, "video description" means the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue.
(h) 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 thereunder. The Commission shall have exclusive jurisdiction with respect to any complaint under this section.
(June 19, 1934, ch. 652, title VII, §713, as added
Prior Provisions
A prior section 613, act June 19, 1934, ch. 652, title VII, §713, as added Nov. 16, 1988,
§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 industry;
(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 Development 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 actions, to be a resident and citizen thereof.
(c) Board of Directors
(1) Composition of Board; Chairman
The Fund shall have a Board of Directors which shall consist of 7 persons appointed by the Chairman of the Commission. Four of such directors shall be representative of the private sector and three of such directors shall be representative of the Commission, the Small Business Administration, and the Department of the Treasury, respectively. The Chairman of the Commission shall appoint one of the representatives of the private sector to serve as chairman of the Fund within 30 days after February 8, 1996, in order to facilitate rapid creation and implementation of the Fund. The directors shall include members with experience in a number of the following areas: finance, investment banking, government banking, communications law and administrative practice, and public policy.
(2) Terms of appointed and elected members
The directors shall be eligible to serve for terms of 5 years, except of the initial members, as designated at the time of their appointment—
(A) 1 shall be eligible to service for a term of 1 year;
(B) 1 shall be eligible to service for a term of 2 years;
(C) 1 shall be eligible to service for a term of 3 years;
(D) 2 shall be eligible to service for a term of 4 years; and
(E) 2 shall be eligible to service for a term of 5 years (1 of whom shall be the Chairman).
Directors may continue to serve until their successors have been appointed and have qualified.
(3) Meetings and functions of the Board
The Board of Directors shall meet at the call of its Chairman, but at least quarterly. The Board shall determine the general policies which shall govern the operations of the Fund. The Chairman of the Board shall, with the approval of the Board, select, appoint, and compensate qualified persons to fill the offices as may be provided for in the bylaws, with such functions, powers, and duties as may be prescribed by the bylaws or by the Board of Directors, and such persons shall be the officers of the Fund and shall discharge all such functions, powers, and duties.
(d) Accounts of Fund
The Fund shall maintain its accounts at a financial institution designated for purposes of this section by the Chairman of the Board (after consultation with the Commission and the Secretary of the Treasury). The accounts of the Fund shall consist of—
(1) interest transferred pursuant to
(2) such sums as may be appropriated to the Commission for advances to the Fund;
(3) any contributions or donations to the Fund that are accepted by the Fund; and
(4) any repayment of, or other payment made with respect to, loans, equity, or other extensions of credit made from the Fund.
(e) Use of 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 subsection (f) of this section;
(2) the provision of financial advice to eligible small businesses;
(3) expenses for the administration and management of the Fund (including salaries, expenses, and the rental or purchase 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 extensions of credit from the Fund shall be made available in accordance with the requirements of the Federal Credit Reform Act of 1990 (
(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 promotes the purposes of this section; and
(4) other lending policies as defined by the Board.
(g) Return of advances
Any advances appropriated pursuant to subsection (d)(2) of this section shall be disbursed upon such terms and conditions (including conditions relating to the time or times of repayment) 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 corporate 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 conduct 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, improve, 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 things as are necessary or incidental to the proper management 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 independent certified public accountants. A report of each such audit shall be furnished to the Secretary of the Treasury and the Commission. 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 Treasury 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 liabilities, 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 information 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 telecommunications industry that have $50,000,000 or less in annual revenues, on average over the past 3 years prior to submitting the application under this section.
(2) Fund
The term "Fund" means the Telecommunications Development Fund established pursuant to this section.
(3) Telecommunications industry
The term "telecommunications industry" means communications businesses using regulated or unregulated facilities or services and includes broadcasting, telecommunications, cable, computer, data transmission, software, programming, advanced messaging, and electronics businesses.
(June 19, 1934, ch. 652, title VII, §714, as added
References in Text
The Federal Credit Reform Act of 1990, referred to in subsec. (f), is title V of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "Fund);".
§615. Support for universal emergency telephone number
The Federal Communications Commission shall encourage and support efforts by States to deploy comprehensive end-to-end emergency communications infrastructure and programs, based on coordinated statewide plans, including seamless, ubiquitous, reliable wireless telecommunications networks and enhanced wireless 9–1–1 service. In encouraging 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 providers), 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 section shall be construed to authorize or require the Commission to impose obligations or costs on any person.
(
Codification
Section was enacted as part of the Wireless Communications and Public Safety Act of 1999, and not as part of the Communications Act of 1934 which comprises this chapter.
Findings and Purpose
"(a)
"(1) the establishment and maintenance of an end-to-end communications infrastructure among members of the public, emergency safety, fire service and law enforcement officials, emergency dispatch providers, transportation officials, and hospital emergency and trauma care facilities will reduce response times for the delivery of emergency care, assist in delivering appropriate care, and thereby prevent fatalities, substantially reduce the severity and extent of injuries, reduce time lost from work, and save thousands of lives and billions of dollars in health care costs;
"(2) the rapid, efficient deployment of emergency telecommunications service requires statewide coordination of the efforts of local public safety, fire service and law enforcement officials, emergency dispatch providers, and transportation officials; the establishment of sources of adequate funding for carrier and public safety, fire service and law enforcement agency technology development and deployment; the coordination and integration of emergency communications with traffic control and management systems and the designation of 9–1–1 as the number to call in emergencies throughout the Nation;
"(3) emerging technologies can be a critical component of the end-to-end communications infrastructure connecting the public with emergency medical service providers and emergency dispatch providers, public safety, fire service and law enforcement officials, and hospital emergency and trauma care facilities, to reduce emergency response times and provide appropriate care;
"(4) improved public safety remains an important public health objective of Federal, State, and local governments and substantially facilitates interstate and foreign commerce;
"(5) emergency care systems, particularly in rural areas of the Nation, will improve with the enabling of prompt notification of emergency services when motor vehicle crashes occur; and
"(6) the construction and operation of seamless, ubiquitous, and reliable wireless telecommunications systems promote public safety and provide immediate and critical communications links among members of the public; emergency medical service providers and emergency dispatch providers; public safety, fire service and law enforcement officials; transportation officials, and hospital emergency and trauma care facilities.
"(b)
§615a. Parity of protection for provision or use of wireless service
(a) Provider parity
A wireless carrier, and its officers, directors, employees, vendors, and agents, shall have immunity or other protection from liability in a State of a scope and extent that is not less than the scope and extent of immunity or other protection from liability that any local exchange company, and its officers, directors, employees, vendors, or agents, have under Federal and State law (whether through statute, judicial decision, tariffs filed by such local exchange company, or otherwise) applicable in such State, including in connection with an act or omission involving the release to a PSAP, emergency medical service provider or emergency dispatch provider, public safety, fire service or law enforcement official, or hospital emergency or trauma care facility of subscriber information related to emergency calls or emergency services.
(b) User parity
A person using wireless 9–1–1 service shall have immunity or other protection from liability of a scope and extent that is not less than the scope and extent of immunity or other protection from liability under applicable law in similar circumstances of a person using 9–1–1 service that is not wireless.
(c) PSAP parity
In matters related to wireless 9–1–1 communications, a PSAP, and its employees, vendors, agents, and authorizing government entity (if any) shall have immunity or other protection from liability of a scope and extent that is not less than the scope and extent of immunity or other protection from liability under applicable law accorded to such PSAP, employees, vendors, agents, and authorizing government entity, respectively, in matters related to 9–1–1 communications that are not wireless.
(d) Basis for enactment
This section is enacted as an exercise of the enforcement power of the Congress under section 5 of the Fourteenth Amendment to the Constitution and the power of the Congress to regulate commerce with foreign nations, among the several States, and with Indian tribes.
(
Codification
Section was enacted as part of the Wireless Communications and Public Safety Act of 1999, and not as part of the Communications Act of 1934 which comprises this chapter.
§615b. Definitions
As used in this Act:
(1) Secretary
The term "Secretary" means the Secretary of Transportation.
(2) State
The term "State" means any of the several States, the District of Columbia, or any territory or possession of the United States.
(3) Public safety answering point; PSAP
The term "public safety answering point" or "PSAP" means a facility that has been designated to receive 9–1–1 calls and route them to emergency service personnel.
(4) Wireless carrier
The term "wireless carrier" means a provider of commercial mobile services or any other radio communications service that the Federal Communications Commission requires to provide wireless 9–1–1 service.
(5) Enhanced wireless 9–1–1 service
The term "enhanced wireless 9–1–1 service" means any enhanced 9–1–1 service so designated by the Federal Communications Commission in the proceeding entitled "Revision of the Commission's Rules to Ensure Compatibility with Enhanced 9–1–1 Emergency Calling Systems" (CC Docket No. 94–102; RM–8143), or any successor proceeding.
(6) Wireless 9–1–1 service
The term "wireless 9–1–1 service" means any 9–1–1 service provided by a wireless carrier, including enhanced wireless 9–1–1 service.
(7) Emergency dispatch providers
The term "emergency dispatch providers" shall include governmental and nongovernmental providers of emergency dispatch services.
(
References in Text
This Act, referred to in text, is
Codification
Section was enacted as part of the Wireless Communications and Public Safety Act of 1999, and not as part of the Communications Act of 1934 which comprises this chapter.