Modern Television Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 3994 To repeal certain provisions of the Communications Act of 1934, title 17 of the United States Code, and certain regulations, to allow for interim carriage of television broadcast signals, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JULY 25, 2019 Mr. SCALISE (for himself and Ms. ESHOO) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently deter- mined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To repeal certain provisions of the Communications Act of 1934, title 17 of the United States Code, and certain regulations, to allow for interim carriage of television broadcast signals, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Modern Television Act 4 of 2019’’. 5 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 2 •HR 3994 IH SEC. 2. AGREEMENTS FOR CARRIAGE OF BROADCAST PRO- 1 GRAMMING. 2 (a) AGREEMENTS FOR CARRIAGE OF BROADCAST 3 PROGRAMMING.—Section 325 of the Communications Act 4 of 1934 (47 U.S.C. 325) is amended— 5 (1) in subsection (b)(3)(C)— 6 (A) in clause (i), by striking the semicolon 7 at the end and inserting ‘‘; and’’; 8 (B) by striking clauses (ii), (iii), and (iv); 9 and 10 (C) by redesignating clause (v) as clause 11 (ii); and 12 (2) by adding at the end the following: 13 ‘‘(f) REQUIREMENTS FOR MARKETPLACE AGREE- 14 MENTS.— 15 ‘‘(1) NEGOTIATION REQUIREMENTS.— 16 ‘‘(A) IN GENERAL.—Not later than 90 17 days after the date of the enactment of the 18 Modern Television Act of 2019, the Commission 19 shall, by regulation— 20 ‘‘(i) require a television broadcast sta- 21 tion and multichannel video programming 22 distributor (and any large station group or 23 qualified MVPD buying group negotiating 24 for a marketplace agreement on behalf of 25 a television broadcast station or multi- 26 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 3 •HR 3994 IH channel video programming distributor, re- 1 spectively) to negotiate in good faith in any 2 effort to reach a marketplace agreement; 3 and 4 ‘‘(ii) prohibit a television broadcast 5 station from coordinating negotiations or 6 negotiating on a joint basis with another 7 television broadcast station in the same 8 local market in an effort to reach a mar- 9 ketplace agreement with a multichannel 10 video programming distributor, unless such 11 stations are directly or indirectly under 12 common de jure control permitted under 13 the regulations of the Commission. 14 ‘‘(B) GOOD FAITH REQUIREMENTS.—The 15 regulations promulgated under paragraph 16 (1)(A) shall provide— 17 ‘‘(i) that it is a violation of the re- 18 quirement under paragraph (1)(A)(i)— 19 ‘‘(I) for a multichannel video pro- 20 gramming distributor, a qualified 21 MVPD buying group, a television 22 broadcast station, or a large station 23 group to refuse to declare an impasse 24 for the sole purpose of avoiding bind- 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 4 •HR 3994 IH ing arbitration under subsection (g), 1 as added by the Modern Television 2 Act of 2019; or 3 ‘‘(II) for a large station group to 4 prohibit a qualified MVPD buying 5 group from permitting a multichannel 6 video programming distributor with 7 which the large station group has an 8 existing marketplace agreement to 9 join a new marketplace agreement ne- 10 gotiated by the large station group 11 and the qualified MVPD buying group 12 upon the expiration of the existing 13 marketplace agreement, if the multi- 14 channel video programming dis- 15 tributor was unable to join the new 16 marketplace agreement at the time of 17 the execution of the agreement be- 18 cause of the existing marketplace 19 agreement; 20 ‘‘(ii) that is not a violation of the re- 21 quirement under paragraph (1)(A)(i)— 22 ‘‘(I) for a television broadcast 23 station or large station group to enter 24 into marketplace agreements con- 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 5 •HR 3994 IH taining different terms and conditions, 1 including price terms and royalty fees, 2 with different multichannel video pro- 3 gramming distributors or with dif- 4 ferent qualified MVPD buying groups 5 if such different terms and conditions 6 are based on competitive marketplace 7 considerations; or 8 ‘‘(II) for a multichannel video 9 programming distributor or a quali- 10 fied MVPD buying group to enter into 11 marketplace agreements containing 12 different terms and conditions, includ- 13 ing price terms and royalty fees, with 14 different television broadcast stations 15 or with different large station groups 16 if such different terms and conditions 17 are based on competitive marketplace 18 considerations; 19 ‘‘(iii) that a multichannel video pro- 20 gramming distributor may satisfy its obli- 21 gations under paragraph (1)(A)(i) by des- 22 ignating a qualified MVPD buying group 23 to negotiate on its behalf, so long as the 24 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 6 •HR 3994 IH qualified MVPD buying group itself nego- 1 tiates in good faith; and 2 ‘‘(iv) that a qualified MVPD buying 3 group may satisfy any obligations under 4 paragraph (1)(A)(i) to designate a rep- 5 resentative with authority to make binding 6 representations by designating such a rep- 7 resentative that can make binding rep- 8 resentations on the qualified MVPD buy- 9 ing group’s behalf. 10 ‘‘(2) INTERIM CARRIAGE.—Not later than 90 11 days after the date of the enactment of the Modern 12 Television Act of 2019, the Commission shall, by 13 regulation, require a multichannel video program- 14 ming distributor to retransmit a signal of a tele- 15 vision broadcast station and the television broadcast 16 station to permit the retransmission of that signal— 17 ‘‘(A) for a period not longer than 60 days 18 beginning on the date on which a marketplace 19 agreement entered into by the television broad- 20 cast station and the multichannel video pro- 21 gramming distributor (or by any large station 22 group or qualified MVPD buying group negoti- 23 ating for a marketplace agreement on behalf of 24 a television broadcast station or multichannel 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 7 •HR 3994 IH video programming distributor, respectively) ex- 1 pires; and 2 ‘‘(B) under the terms and conditions of 3 such expired agreement. 4 ‘‘(3) RETROACTIVITY OF MARKETPLACE AGREE- 5 MENT.—Not later than 90 days after the date of the 6 enactment of the Modern Television Act of 2019, the 7 Commission shall require, by regulation, each mar- 8 ketplace agreement entered into on or after such 9 date of enactment by a television broadcast station 10 and a multichannel video programming distributor 11 (or by any large station group or qualified MVPD 12 buying group negotiating for a marketplace agree- 13 ment on behalf of a television broadcast station or 14 multichannel video programming distributor, respec- 15 tively) to include a clause making the terms of the 16 agreement retroactive to the expiration date of the 17 most recent marketplace agreement entered into by 18 or on behalf of the station and the distributor if the 19 station and the distributor— 20 ‘‘(A) had previously entered into a market- 21 place agreement; and 22 ‘‘(B) are required to retransmit a signal or 23 permit the retransmission of a signal, as the 24 case may be, under paragraph (2) or subsection 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 8 •HR 3994 IH (g), as added by the Modern Television Act of 1 2019. 2 ‘‘(4) PROHIBITION ON REQUIRING CERTAIN 3 PAYMENTS.—Not later than 90 days after the date 4 of the enactment of the Modern Television Act of 5 2019, the Commission shall, by regulation, prohibit 6 a television broadcast station from requiring pay- 7 ment, either directly or indirectly, from a multi- 8 channel video programming distributor for cus- 9 tomers of the multichannel video programming dis- 10 tributor who do not receive the signals of the tele- 11 vision broadcast station from that distributor. 12 ‘‘(5) LIMITATION.—The requirements under 13 this subsection do not apply with respect to manda- 14 tory carriage of the signal of a television broadcast 15 station that elects mandatory carriage under section 16 338, 614, or 615. 17 ‘‘(6) DEFINITIONS.—In this subsection: 18 ‘‘(A) LARGE STATION GROUP.—The term 19 ‘large station group’ means a group— 20 ‘‘(i) of commonly owned or controlled 21 television broadcast stations that generally 22 negotiate marketplace agreements as a sin- 23 gle entity; and 24 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 9 •HR 3994 IH ‘‘(ii) which includes, with respect to at 1 least five different local markets, at least 2 one television broadcast station ranked 3 among the top four stations, based on au- 4 dience share, as measured by Nielsen 5 Media Research or by any comparable pro- 6 fessional, accepted audience ratings serv- 7 ice. 8 ‘‘(B) LOCAL MARKET.—The term ‘local 9 market’ has the meaning given that term in 10 section 122 of title 17, United States Code. 11 ‘‘(C) MARKETPLACE AGREEMENT.—The 12 term ‘marketplace agreement’ means an agree- 13 ment, or agreements, for— 14 ‘‘(i) the exclusive right under section 15 106 of title 17, United States Code, to 16 transmit a performance or display of a 17 work embodied in primary transmission (as 18 defined in section 111(f) of such title) of 19 a television broadcast station and the roy- 20 alty fee payable; or 21 ‘‘(ii) retransmission consent under 22 subsection (b), as in effect before the re- 23 peal made by the Modern Television Act of 24 2019. 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 10 •HR 3994 IH ‘‘(D) MULTICHANNEL VIDEO PROGRAM- 1 MING DISTRIBUTOR.—The term ‘multichannel 2 video programming distributor’ has the mean- 3 ing given the term in section 602. 4 ‘‘(E) QUALIFIED MVPD BUYING GROUP.— 5 The term ‘qualified MVPD buying group’ 6 means an entity, with respect to a large station 7 group, that— 8 ‘‘(i) has been designated to negotiate 9 on behalf of two or more multichannel 10 video programming distributors— 11 ‘‘(I) none of which is a multi- 12 channel video programming dis- 13 tributor that serves more than 14 5,000,000 subscribers nationally; and 15 ‘‘(II) that do not collectively 16 serve more than 35 percent of all 17 households served by a multichannel 18 video programming distributor in any 19 single local market in which the appli- 20 cable large station group operates; 21 ‘‘(ii) agrees to assume liability under 22 a marketplace agreement only with respect 23 to forwarding to the appropriate television 24 broadcast station or large station group for 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 11 •HR 3994 IH payment all fees received from the multi- 1 channel video programming distributors on 2 behalf of which the entity negotiates; 3 ‘‘(iii) uniformly bills each multi- 4 channel video programming distributor on 5 behalf of which the entity negotiates; 6 ‘‘(iv) agrees to standardized contract 7 provisions for each multichannel video pro- 8 gramming distributor on behalf of which 9 the entity negotiates; and 10 ‘‘(v) agrees either collectively or indi- 11 vidually on reasonable technical quality 12 standards for each multichannel video pro- 13 gramming distributor on behalf of which 14 the entity negotiates. 15 ‘‘(F) TELEVISION BROADCAST STATION.— 16 The term ‘television broadcast station’ means 17 an over-the-air commercial or noncommercial 18 television broadcast station licensed by the 19 Commission under subpart E of part 73 of title 20 47, Code of Federal Regulations, except that 21 such term does not include a low-power or 22 translator television station.’’. 23 (b) EFFECTIVE DATE.—This section, and the amend- 24 ments made by this section, shall take effect on the date 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 12 •HR 3994 IH that is 90 days after the date of the enactment of this 1 Act. 2 SEC. 3. REPEAL OF REGULATORY INTERVENTION IN THE 3 TELEVISION MARKETPLACE UNDER THE 4 COMMUNICATIONS ACT OF 1934. 5 (a) REPEAL.—The following sections of the Commu- 6 nications Act of 1934 (47 U.S.C. 151 et seq.) are hereby 7 repealed: 8 (1) Section 325(b) (47 U.S.C. 325(b)). 9 (2) Section 325(e) (47 U.S.C. 325(e)). 10 (3) Section 339 (47 U.S.C. 339). 11 (4) Section 340 (47 U.S.C. 340). 12 (5) Section 341 (47 U.S.C. 341). 13 (6) Section 342 (47 U.S.C. 342). 14 (7) Section 612 (47 U.S.C. 532). 15 (8) Section 712 (47 U.S.C. 612). 16 (b) ADDITIONAL AMENDMENTS.— 17 (1) SECTION 338.—Section 338 of the Commu- 18 nications Act of 1934 (47 U.S.C. 338) is amended— 19 (A) in subsection (a)— 20 (i) in paragraph (1)— 21 (I) by inserting ‘‘or under a mar- 22 ketplace agreement (as that term is 23 defined in section 325),’’ after 24 ‘‘Code,’’; and 25 VerDate Sep 11 2014 22:59 Aug 13, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3994.IH H3994 jspears on DSK3GMQ082PROD with BILLS 13 •HR 3994 IH (II) by striking ‘‘, subject to sec- 1 tion 325(b)’’; 2 (ii) in paragraph (2), by striking 3 ‘‘501(f)’’ each place it appears and insert- 4 ing ‘‘501(e)’’; 5 (iii) in paragraph (3)— 6 (I) by striking ‘‘whose signals’’ 7 and all that follows through ‘‘of title 8 17, United States Code,’’; and 9 (II) by inserting ‘‘or a market- 10 place agreement’’ after ‘‘such title’’; 11 (iv) by amending paragraph (4) to 12 read as follows: 13 ‘‘(4) NONDISCRI [Text truncated for display. 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