§  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 noncommercial programming pursuant to paragraph (e) of this
   section, or

   (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
   section.

   (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
   origination programming.

   (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
   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
   § 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, as amended at  72 FR 50033 , Aug. 29, 2007]
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