Goto Section: 25.601 | 25.702 | Table of Contents
Revised as of September 12, 2019
Goto Year:2018 |
§ 25.701 Other DBS Public interest obligations.
Link to an amendment published at 84 FR 45668 , Aug. 30, 2019.
(a) DBS providers are subject to the public interest obligations set
forth in paragraphs (b), (c), (d), (e) and (f) of this section. As used
in this section, DBS providers are any of the following:
(1) Entities licensed to operate satellites in the 12.2 to 12.7 GHz DBS
frequency bands; or
(2) Entities licensed to operate satellites in the Ku band
Fixed-Satellite Service and that sell or lease capacity to a video
programming distributor that offers service directly to consumers
providing a sufficient number of channels so that four percent of the
total applicable programming channels yields a set aside of at least
one channel of non commercial programming pursuant to paragraph (e) of
this section, or
(3) Non U.S. licensed satellite operators in the Ku band that offer
video programming directly to consumers in the United States pursuant
to an earth station license issued under part 25 of this title and that
offer a sufficient number of channels to consumers so that four percent
of the total applicable programming channels yields a set aside of one
channel of noncommercial programming pursuant to paragraph (e) of this
(4) Entities licensed to operate satellites in the 17/24 GHz BSS that
offer video programming directly to consumers or that sell or lease
capacity to a video programming distributor that offers service
directly to consumers providing a sufficient number of channels so that
four percent of the total applicable programming channels yields a set
aside of at least one channel of noncommercial programming pursuant to
paragraph (e) of this section, or
(5) Non U.S. licensed satellite operators in the 17/24 GHz BSS that
offer video programming directly to consumers in the United States or
that sell or lease capacity to a video programming distributor that
offers service directly to consumers in the United States pursuant to
an earth station license issued under part 25 of this title and that
offer a sufficient number of channels to consumers so that four percent
of the total applicable programming channels yields a set aside of one
channel of noncommercial programming pursuant to paragraph (e) of this
(b) Political broadcasting requirements—
(1) Legally qualified candidates for public office for purposes of this
section are as defined in § 73.1940 of this chapter.
(2) DBS origination programming is defined as programming (exclusive of
broadcast signals) carried on a DBS facility over one or more channels
and subject to the exclusive control of the DBS provider.
(3) Reasonable access. (i) DBS providers must comply with section
312(a)(7) of the Communications Act of 1934, as amended, by allowing
reasonable access to, or permitting purchase of reasonable amounts of
time for, the use of their facilities by a legally qualified candidate
for federal elective office on behalf of his or her candidacy.
(ii) Weekend access. For purposes of providing reasonable access, DBS
providers shall make facilities available for use by federal candidates
on the weekend before the election if the DBS provider has provided
similar access to commercial advertisers during the year preceding the
relevant election period. DBS providers shall not discriminate between
candidates with regard to weekend access.
(4) Use of facilities; equal opportunities. DBS providers must comply
with section 315 of the Communications Act of 1934, as amended, by
providing equal opportunities to legally qualified candidates for DBS
(i) General requirements. Except as otherwise indicated in
§ 25.701(b)(3), no DBS provider is required to permit the use of its
facilities by any legally qualified candidate for public office, but if
a DBS provider shall permit any such candidate to use its facilities,
it shall afford equal opportunities to all other candidates for that
office to use such facilities. Such DBS provider shall have no power of
censorship over the material broadcast by any such candidate.
Appearance by a legally qualified candidate on any:
(A) Bona fide newscast;
(B) Bona fide news interview;
(C) Bona fide news documentary (if the appearance of the candidate is
incidental to the presentation of the subject or subjects covered by
the news documentary); or
(D) On the spot coverage of bona fide news events (including, but not
limited to political conventions and activities incidental thereto)
shall not be deemed to be use of a DBS provider's facility. (Section
315(a) of the Communications Act.)
(ii) Uses. As used in this section and § 25.701(c), the term “use” means
a candidate appearance (including by voice or picture) that is not
exempt under paragraphs (b)(3)(i)(A) through (b)(3)(i)(D) of this
(iii) Timing of request. A request for equal opportunities must be
submitted to the DBS provider within 1 week of the day on which the
first prior use giving rise to the right of equal opportunities
occurred: Provided, however, That where the person was not a candidate
at the time of such first prior use, he or she shall submit his or her
request within 1 week of the first subsequent use after he or she has
become a legally qualified candidate for the office in question.
(iv) Burden of proof. A candidate requesting equal opportunities of the
DBS provider or complaining of noncompliance to the Commission shall
have the burden of proving that he or she and his or her opponent are
legally qualified candidates for the same public office.
(v) Discrimination between candidates. In making time available to
candidates for public office, no DBS provider shall make any
discrimination between candidates in practices, regulations,
facilities, or services for or in connection with the service rendered
pursuant to this part, or make or give any preference to any candidate
for public office or subject any such candidate to any prejudice or
disadvantage; nor shall any DBS provider make any contract or other
agreement that shall have the effect of permitting any legally
qualified candidate for any public office to use DBS origination
programming to the exclusion of other legally qualified candidates for
the same public office.
(c) Candidate rates—(1) Charges for use of DBS facilities. The charges,
if any, made for the use of any DBS facility by any person who is a
legally qualified candidate for any public office in connection with
his or her campaign for nomination for election, or election, to such
office shall not exceed:
(i) During the 45 days preceding the date of a primary or primary
runoff election and during the 60 days preceding the date of a general
or special election in which such person is a candidate, the lowest
unit charge of the DBS provider for the same class and amount of time
for the same period.
(A) A candidate shall be charged no more per unit than the DBS provider
charges its most favored commercial advertisers for the same classes
and amounts of time for the same periods. Any facility practices
offered to commercial advertisers that enhance the value of advertising
spots must be disclosed and made available to candidates upon equal
terms. Such practices include but are not limited to any discount
privileges that affect the value of advertising, such as bonus spots,
time sensitive make goods, preemption priorities, or any other factors
that enhance the value of the announcement.
(B) The Commission recognizes non preemptible, preemptible with notice,
immediately preemptible and run of schedule as distinct classes of
(C) DBS providers may establish and define their own reasonable classes
of immediately preemptible time so long as the differences between such
classes are based on one or more demonstrable benefits associated with
each class and are not based solely upon price or identity of the
advertiser. Such demonstrable benefits include, but are not limited to,
varying levels of preemption protection, scheduling flexibility, or
associated privileges, such as guaranteed time sensitive make goods.
DBS providers may not use class distinctions to defeat the purpose of
the lowest unit charge requirement. All classes must be fully disclosed
and made available to candidates.
(D) DBS providers may establish reasonable classes of preemptible with
notice time so long as they clearly define all such classes, fully
disclose them and make them available to candidates.
(E) DBS providers may treat non preemptible and fixed position as
distinct classes of time provided that they articulate clearly the
differences between such classes, fully disclose them, and make them
available to candidates.
(F) DBS providers shall not establish a separate, premium priced class
of time sold only to candidates. DBS providers may sell higher priced
non preemptible or fixed time to candidates if such a class of time is
made available on a bona fide basis to both candidates and commercial
advertisers, and provided such class is not functionally equivalent to
any lower priced class of time sold to commercial advertisers.
(H) Lowest unit charge may be calculated on a weekly basis with respect
to time that is sold on a weekly basis, such as rotations through
particular programs or dayparts. DBS providers electing to calculate
the lowest unit charge by such a method must include in that
calculation all rates for all announcements scheduled in the rotation,
including announcements aired under long term advertising contracts.
DBS providers may implement rate increases during election periods only
to the extent that such increases constitute “ordinary business
practices,” such as seasonal program changes or changes in audience
(I) DBS providers shall review their advertising records periodically
throughout the election period to determine whether compliance with
this section requires that candidates receive rebates or credits. Where
necessary, DBS providers shall issue such rebates or credits promptly.
(J) Unit rates charged as part of any package, whether individually
negotiated or generally available to all advertisers, must be included
in the lowest unit charge calculation for the same class and length of
time in the same time period. A candidate cannot be required to
purchase advertising in every program or daypart in a package as a
condition for obtaining package unit rates.
(K) DBS providers are not required to include non cash promotional
merchandising incentives in lowest unit charge calculations; provided,
however, that all such incentives must be offered to candidates as part
of any purchases permitted by the system. Bonus spots, however, must be
included in the calculation of the lowest unit charge calculation.
(L) Make goods, defined as the rescheduling of preempted advertising,
shall be provided to candidates prior to election day if a DBS provider
has provided a time sensitive make good during the year preceding the
pre election periods, respectively set forth in paragraph (c)(1)(i) of
this section, to any commercial advertiser who purchased time in the
(M) DBS providers must disclose and make available to candidates any
make good policies provided to commercial advertisers. If a DBS
provider places a make good for any commercial advertiser or other
candidate in a more valuable program or daypart, the value of such make
good must be included in the calculation of the lowest unit charge for
that program or daypart.
(ii) At any time other than the respective periods set forth in
paragraph (c)(1)(i) of this section, DBS providers may charge legally
qualified candidates for public office no more than the charges made
for comparable use of the facility by commercial advertisers. The
rates, if any, charged all such candidates for the same office shall be
uniform and shall not be rebated by any means, direct or indirect. A
candidate shall be charged no more than the rate the DBS provider would
charge for comparable commercial advertising. All discount privileges
otherwise offered by a DBS provider to commercial advertisers must be
disclosed and made available upon equal terms to all candidates for
(2) If a DBS provider permits a candidate to use its facilities, it
shall make all discount privileges offered to commercial advertisers,
including the lowest unit charges for each class and length of time in
the same time period and all corresponding discount privileges,
available on equal terms to all candidates. This duty includes an
affirmative duty to disclose to candidates information about rates,
terms, conditions and all value enhancing discount privileges offered
to commercial advertisers, as provided herein. DBS providers may use
reasonable discretion in making the disclosure; provided, however, that
the disclosure includes, at a minimum, the following information:
(i) A description and definition of each class of time available to
commercial advertisers sufficiently complete enough to allow candidates
to identify and understand what specific attributes differentiate each
(ii) A description of the lowest unit charge and related privileges
(such as priorities against preemption and make goods prior to specific
deadlines) for each class of time offered to commercial advertisers;
(iii) A description of the DBS provider's method of selling preemptible
time based upon advertiser demand, commonly known as the “current
selling level,” with the stipulation that candidates will be able to
purchase at these demand generated rates in the same manner as
(iv) An approximation of the likelihood of preemption for each kind of
preemptible time; and
(v) An explanation of the DBS provider's sales practices, if any, that
are based on audience delivery, with the stipulation that candidates
will be able to purchase this kind of time, if available to commercial
(3) Once disclosure is made, DBS providers shall negotiate in good
faith to actually sell time to candidates in accordance with the
(d) Political file. Each DBS provider shall maintain a complete and
orderly political file.
(1) The political file shall contain, at a minimum:
(i) A record of all requests for DBS origination time, the disposition
of those requests, and the charges made, if any, if the request is
granted. The “disposition” includes the schedule of time purchased,
when spots actually aired, the rates charged, and the classes of time
(ii) A record of the free time provided if free time is provided for
use by or on behalf of candidates.
(2) All records required to be retained by this section must be placed
in the political file as soon as possible and must be retained for a
period of two years. After the effective date of this section, DBS
providers shall place all new political file material required to be
retained by this section in the online file hosted by the Commission.
(e) Commercial limits in children's programs. (1) No DBS provider shall
air more than 10.5 minutes of commercial matter per hour during
children's programming on weekends, or more that 12 minutes of
commercial matter per hour on week days.
(2) This rule shall not apply to programs aired on a broadcast
television channel which the DBS provider passively carries, or to
channels over which the DBS provider may not exercise editorial
control, pursuant to 47 U.S.C. 335(b)(3).
(3) DBS providers airing children's programming must maintain in the
online file hosted by the Commission records sufficient to verify
compliance with this rule. Such records must be maintained for a period
sufficient to cover the limitations period specified in 47 U.S.C.
Note 1 to paragraph (e): Commercial matter means airtime sold for
purposes of selling a product or service.
Note 2 to paragraph (e): For purposes of this section, children's
programming refers to programs originally produced and broadcast
primarily for an audience of children 12 years old and younger.
(f) Carriage obligation for noncommercial programming—
(1) Reservation requirement. DBS providers shall reserve four percent
of their channel capacity exclusively for use by qualified programmers
for noncommercial programming of an educational or informational
nature. Channel capacity shall be determined annually by calculating,
based on measurements taken on a quarterly basis, the average number of
channels available for video programming on all satellites licensed to
the provider during the previous year. DBS providers may use this
reserved capacity for any purpose until such time as it is used for
noncommercial educational or informational programming.
(2) Qualified programmer. For purposes of these rules, a qualified
(i) A noncommercial educational broadcast station as defined in section
397(6) of the Communications Act of 1934, as amended,
(ii) A public telecommunications entity as defined in section 397(12)
of the Communications Act of 1934, as amended,
(iii) An accredited nonprofit educational institution or a governmental
organization engaged in the formal education of enrolled students (A
publicly supported educational institution must be accredited by the
appropriate state department of education; a privately controlled
educational institution must be accredited by the appropriate state
department of education or the recognized regional and national
accrediting organizations), or
(iv) A nonprofit organization whose purposes are educational and
include providing educational and instructional television material to
such accredited institutions and governmental organizations.
(v) Other noncommercial entities with an educational mission.
(3) Editorial control. (i) A DBS operator will be required to make
capacity available only to qualified programmers and may select among
such programmers when demand exceeds the capacity of their reserved
(ii) A DBS operator may not require the programmers it selects to
include particular programming on its channels.
(iii) A DBS operator may not alter or censor the content of the
programming provided by the qualified programmer using the channels
reserved pursuant to this section.
(4) Non-commercial channel limitation. A DBS operator cannot initially
select a qualified programmer to fill more than one of its reserved
channels except that, after all qualified entities that have sought
access have been offered access on at least one channel, a provider may
allocate additional channels to qualified programmers without having to
make additional efforts to secure other qualified programmers.
(5) Rates, terms and conditions. (i) In making the required reserved
capacity available, DBS providers cannot charge rates that exceed costs
that are directly related to making the capacity available to qualified
programmers. Direct costs include only the cost of transmitting the
signal to the uplink facility and uplinking the signal to the
(ii) Rates for capacity reserved under paragraph (a) of this section
shall not exceed 50 percent of the direct costs as defined in this
(iii) Nothing in this section shall be construed to prohibit DBS
providers from negotiating rates with qualified programmers that are
less than 50 percent of direct costs or from paying qualified
programmers for the use of their programming.
(iv) DBS providers shall reserve discrete channels and offer these to
qualifying programmers at consistent times to fulfill the reservation
requirement described in these rules.
(6) Public file. (i) In addition to the political file requirements in
§ 25.701, each DBS provider shall maintain in the online file hosted by
the Commission a complete and orderly record of:
(A) Quarterly measurements of channel capacity and yearly average
calculations on which it bases its four percent reservation, as well as
its response to any capacity changes;
(B) A record of entities to whom noncommercial capacity is being
provided, the amount of capacity being provided to each entity, the
conditions under which it is being provided and the rates, if any,
being paid by the entity;
(C) A record of entities that have requested capacity, disposition of
those requests and reasons for the disposition.
(ii) All records required by paragraph (i) of this paragraph shall be
placed in the online file hosted by the Commission as soon as possible
and shall be retained for a period of two years.
(iii) Each DBS provider must also place in the online file hosted by
the Commission the records required to be placed in the public
inspection file by § 25.701(e) (commercial limits in children's
programs) and by § 25.601 and 47 CFR part 76, subpart E (equal
employment opportunity requirements) and retain those records for the
period required by those rules.
(iv) Each DBS provider must provide a link to the online public
inspection file hosted on the Commission's Web site from the home page
of its own Web site, if the provider has a Web site, and provide on its
Web site contact information for a representative who can assist any
person with disabilities with issues related to the content of the
public files. Each DBS provider also must include in the online public
file hosted by the Commission the address of the provider's local
public file, if the provider retains documents in the local public file
that are not available in the Commission's online file, and the name,
phone number, and email address of the provider's designated contact
for questions about the public file.
(7) Effective date. DBS providers are required to make channel capacity
available pursuant to this section upon the effective date. Programming
provided pursuant to this rule must be available to the public no later
than six months after the effective date.
[ 69 FR 23157 , Apr. 28, 2004, as amended at 72 FR 50033 , Aug. 29, 2007;
78 FR 8431 , Feb. 6, 2013; 81 FR 10122 , Feb. 29, 2016]
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Goto Section: 25.601 | 25.702
Goto Year: 2018 |
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