Sec.  25.701   Public interest obligations.

   (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 non
   commercial programming pursuant to paragraph (e) of this section.

   (b) Political broadcasting requirements—

   (1) Legally qualified candidates for public office for purposes of this
   section are as defined in  Sec. 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 origination
   programming.

   (i) General requirements. Except as otherwise indicated in  Sec. 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  Sec. 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 section.

   (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 time.

   (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.

   (G) [Reserved]

   (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 ratings.

   (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 same class.

   (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 public office.

   (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 class;

   (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 commercial advertisers;

   (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 advertisers.

   (3) Once disclosure is made, DBS providers shall negotiate in good faith to
   actually sell time to candidates in accordance with the disclosure.

   (d) Political file. Each DBS provider shall keep and permit public
   inspection of a complete and orderly political file and shall prominently
   disclose the physical location of the file, and the telephonic and
   electronic means to access the 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 purchased; and

   (ii) A record of the free time provided if free time is provided for use by
   or on behalf of candidates.

   (2) DBS providers shall place all records required by this section in a file
   available to the public as soon as possible and shall be retained for a
   period of four years until December 31, 2006, and thereafter for a period of
   two years.

   (3) DBS providers shall make available, by fax, e-mail, or by mail upon
   telephone request, photocopies of documents in their political files and
   shall assist callers by answering questions about the contents of their
   political files. Provided, however, that if a requester prefers access by
   mail, the DBS provider shall pay for postage but may require individuals
   requesting documents to pay for photocopying. To the extent that a DBS
   provider places its political file on its Web site, it may refer the public
   to the Web site in lieu of mailing photocopies. Any material required by
   this section to be maintained in the political file must be made available
   to the public by either mailing or Web site access or both.

   (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 records
   sufficient to verify compliance with this rule and make such records
   available to the public. Such records must be maintained for a period
   sufficient to cover the limitations period specified in 47 U.S.C.
   503(b)(6)(B).

   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
   programmer is:

   (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 channels.

   (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 satellite.

   (ii) Rates for capacity reserved under paragraph (a) of this section shall
   not exceed 50 percent of the direct costs as defined in this section.

   (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
    Sec. 25.701(d), each DBS provider shall keep and permit public inspection of 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 this paragraph shall be placed in a file
   available to the public as soon as possible and shall be retained for a
   period of two years.

   (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]
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                        Last updated: July 27, 2005