Ch 9 Shared Content

1. Introduction
1.1. Essentially, MVPD access to broadcast content

2. Programs in Isolation
2.1. Copyright Law
2.1.1. Programs are obviously protected, but on the side of cable operators a program that has already been broadcast has been made public. The question then is, do the broadcasters deserve royalties
2.1.2. Fortnightly Corp v United Artists – local retransmission Supreme court ruled Just the same as consumers are free to receive broadcasts, cable operators are free to receive and display
2.1.3. CBS v Teleprompter – distant retransmission of local broadcasts Cable company acting more like a viewer than broadcaster No copyright liability for cable provider or consumer
2.1.4. Copyright act of 1976 Reversed decision of Fortnightly and Teleprompter Could not borrow broadcast content
2.1.5. Copyright act (17 USC 111) Copyright owners have no choice but to authorize retransmission as long as cable operators satisfy terms set out by congress Retransmission is not willfully altered thru changes, deletions, additions, etc Pay royalties only for subset of content that is nonnetwork and from a broadcaster outside the cable operators local service No royalties for network programming or local nonnetwork programming
2.2. Syndicated Exclusivity and Network Nonduplication
2.2.1. Focus on program content
2.2.2. Copyright act of 1976 represented compromise Cable operators must pay for some content Cable operators retransmission could not be denied
2.2.3. Companion rules
2.2.4. Syndicated exclusivity “syndex” Enable local broadcaster to prevent cable system from exhibiting signal from a distant broadcaster that contains content the local broadcaster has obtained exclusive rights to in the local area United Video v FCC (1989) DC Circuit upheld rules
2.3. Direct Broadcast Satellite
2.3.1. Satellite Television act of 1999 Amend the Communications Act of 1934 Promote competition and protect free local over-the-air tv DBS is best competitor to cable Satellite home viewer act of 1988 Prohibits retransmission of local broadcast stations
2.3.2. Congress ordered FCC to apply network nonduplication, syndicated exclusivity, and sports blackout rules only with respect to superstations Cable in contrast, these rules applied to any imported signal

3. Programs Grouped into Signals
3.1. MPVD cannot retransmit a broadcasters signal without that broadcasters explicit permission (retransmission consent)
3.1.1. Consent not needed for superstations that have national broadcasting
3.1.2. It is an intellectual property right
3.1.3. Broadcasters can negotiate to receive portions of any revenue generated from retransmission
3.2. Certain broadcasters have the right to insist that their signals be carried without charge on the local cable system (must carry obligations)
3.2.1. Apply to local commercial television (network affiliates and independents) and to noncommercial educational television
3.2.2. Cable not required to carry all, instead based on number of channels and subscribers
3.3. DBS operator that carries one local broadcaster must carry all (carry one, carry all)
3.4. First Amendment Challenges to Cable Must-Carry
3.4.1. Turner Broadcasting System, inc v FCC [I]
3.4.2. Turner Broadcasting System, inc v FCC [II]
3.5. First Amendment Challenges to DBS Must-Carry
3.5.1. Satellite Home Viewer Improvement Act of 1999 (SHVIA) Includes must-carry and compulsory license provisions Carry one, carry all
3.5.2. Satellite Broadcasting & Communications Ass’n v FCC Held that carry one, carry all rule doesn’t violate First Amendment rights
3.6. Must-carry and the Digital Transition
3.6.1. After FCC allocated additional channel to broadcaster for digital transmission, came to question whether cable providers had to carry all signals on transmission and if they had to carry both analog and digital FCC Determined cable need not dual carry (analog and digital) Mandatory multicast carriage was not necessary to advance Congress’s goals Multicast only applied to digital-only television stations

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