Federal Communications Commission DA 24-337
5. Section 338(l) of the Act, added by the STELAR, creates a satellite market modification
regime very similar to that in place for cable television, while adding provisions to address the unique
nature of satellite television service, particularly issues of technical and economic feasibility that are
specific to the satellite context.
13
Notably, the STELAR carves out an exception to carriage obligations
14
resulting from a market modification that would be technically or economically infeasible for a satellite
carrier to implement. The statute provides that a market modification “shall not create additional carriage
obligations for a satellite carrier if it is not technically and economically feasible for such carrier to
accomplish such carriage by means of its satellites in operation at the time of the determination.”
15
In
enacting this provision, Congress recognized that the unique nature of satellite television service may
make a particular market modification difficult for a satellite carrier to effectuate using its satellites in
operation at the time of the determination and thus exempted the carrier from the resulting carriage
obligation under those circumstances.
16
This exception applies only in the satellite context.
17
6. In the STELAR Market Modification Report and Order, the Commission concluded that
the satellite carrier has the burden to demonstrate that the carriage resulting from a market modification is
infeasible.
18
The Commission requires different demonstrations of infeasibility depending on whether the
claim of infeasibility is based on insufficient spot beam coverage or some other basis.
19
Satellite carriers
use spot beams to offer local broadcast stations to targeted geographic areas.
20
With respect to claims of
“spot beam coverage infeasibility,” the Commission concluded that “it is per se not technically and
economically feasible for a satellite carrier to provide a station to a new community that is, or to the
13
See 47 U.S.C. §§ 338(l), 534(h)(1)(C) (providing factors the Commission must take into account when
considering satellite market modification requests). The Commission may determine that particular communities
are part of more than one television market. 47 U.S.C. § 338(l)(2)(A). When the Commission modifies a station’s
market to add a community for purposes of carriage rights, the station is considered local and is covered by the local
statutory copyright license and may assert mandatory carriage (or pursue retransmission consent) by the applicable
satellite carrier in the local market. Conversely, if the Commission modifies a station’s market to delete a
community, the station is considered “distant” and loses its right to assert mandatory carriage (or retransmission
consent) on the applicable satellite carrier in the local market.
14
See supra note 8 and accompanying text (describing the “carry one, carry all” satellite carriage requirement).
15
47 U.S.C. § 338(l)(3)(A).
16
See Report from the Senate Committee on Commerce, Science, and Transportation accompanying S. 2799, 113th
Cong., S. Rep. No. 113-322, 11 (2014) (Senate Commerce Committee Report) (recognizing “that there are technical
and operational differences that may make a particular television market modification difficult for a satellite carrier
to effectuate”).
17
In the cable context, if review of the factors and other evidence demonstrates that a community is part of a
station’s market, the modification is granted without reference to issues of technical and economic feasibility. As
explained in the STELAR Market Modification Report and Order, Congress recognized “the inherent difference
between cable and satellite television service” by adopting certain “provisions specific to satellite,” including 47
U.S.C. § 338(l)(3)(A)’s feasibility exception. 30 FCC Rcd at 10408, n.6.
18
STELAR Market Modification Report and Order, 30 FCC Rcd at 10435, para. 38 (observing that, as a practical
matter, only the satellite carriers have the specific information necessary to determine if the carriage contemplated in
a market modification would not be technically and economically feasible by means of their satellites in operation).
19
Id. at 10435-36, 10438, paras. 39, 42
20
Id. at 10430, n.162 (quoting DIRECTV to explain that “[s]pot-beam technology divides up a portion of the
bandwidth available to a satellite into beams that cover limited geographic areas” and that “[d]oing so allows
particular sets of frequencies to be reused many times. This spectral efficiency unlocked the potential for satellite
carriers to offer local broadcast signals in the late 1990s, and it enables satellite carriers to offer local service
today.”). This is in contrast to a “CONUS” beam, which provides coverage to the entire continental United States
and generally carries signals that are available and accessed by subscribers throughout that entire area.