
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 106-554 Section 1(a)(4)[143(a)]]
[Document affected by Public Law 106-554 Section 1(a)(4)[143(b)]]
[CITE: 47USC336]

 
          TITLE 47--TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
 
                 CHAPTER 5--WIRE OR RADIO COMMUNICATION
 
          SUBCHAPTER III--SPECIAL PROVISIONS RELATING TO RADIO
 
                       Part I--General Provisions
 
Sec. 336. Broadcast spectrum flexibility


(a) Commission action

    If the Commission determines to issue additional licenses for 
advanced television services, the Commission--
        (1) should limit the initial eligibility for such licenses to 
    persons that, as of the date of such issuance, are licensed to 
    operate a television broadcast station or hold a permit to construct 
    such a station (or both); and
        (2) shall adopt regulations that allow the holders of such 
    licenses to offer such ancillary or supplementary services on 
    designated frequencies as may be consistent with the public 
    interest, convenience, and necessity.

(b) Contents of regulations

    In prescribing the regulations required by subsection (a) of this 
section, the Commission shall--
        (1) only permit such licensee or permittee to offer ancillary or 
    supplementary services if the use of a designated frequency for such 
    services is consistent with the technology or method designated by 
    the Commission for the provision of advanced television services;
        (2) limit the broadcasting of ancillary or supplementary 
    services on designated frequencies so as to avoid derogation of any 
    advanced television services, including high definition television 
    broadcasts, that the Commission may require using such frequencies;
        (3) apply to any other ancillary or supplementary service such 
    of the Commission's regulations as are applicable to the offering of 
    analogous services by any other person, except that no ancillary or 
    supplementary service shall have any rights to carriage under 
    section 534 or 535 of this title or be deemed a multichannel video 
    programming distributor for purposes of section 548 of this title;
        (4) adopt such technical and other requirements as may be 
    necessary or appropriate to assure the quality of the signal used to 
    provide advanced television services, and may adopt regulations that 
    stipulate the minimum number of hours per day that such signal must 
    be transmitted; and
        (5) prescribe such other regulations as may be necessary for the 
    protection of the public interest, convenience, and necessity.

(c) Recovery of license

    If the Commission grants a license for advanced television services 
to a person that, as of the date of such issuance, is licensed to 
operate a television broadcast station or holds a permit to construct 
such a station (or both), the Commission shall, as a condition of such 
license, require that either the additional license or the original 
license held by the licensee be surrendered to the Commission for 
reallocation or reassignment (or both) pursuant to Commission 
regulation.

(d) Public interest requirement

    Nothing in this section shall be construed as relieving a television 
broadcasting station from its obligation to serve the public interest, 
convenience, and necessity. In the Commission's review of any 
application for renewal of a broadcast license for a television station 
that provides ancillary or supplementary services, the television 
licensee shall establish that all of its program services on the 
existing or advanced television spectrum are in the public interest. Any 
violation of the Commission rules applicable to ancillary or 
supplementary services shall reflect upon the licensee's qualifications 
for renewal of its license.

(e) Fees

                  (1) Services to which fees apply

        If the regulations prescribed pursuant to subsection (a) of this 
    section permit a licensee to offer ancillary or supplementary 
    services on a designated frequency--
            (A) for which the payment of a subscription fee is required 
        in order to receive such services, or
            (B) for which the licensee directly or indirectly receives 
        compensation from a third party in return for transmitting 
        material furnished by such third party (other than commercial 
        advertisements used to support broadcasting for which a 
        subscription fee is not required),

    the Commission shall establish a program to assess and collect from 
    the licensee for such designated frequency an annual fee or other 
    schedule or method of payment that promotes the objectives described 
    in subparagraphs (A) and (B) of paragraph (2).

                       (2) Collection of fees

        The program required by paragraph (1) shall--
            (A) be designed (i) to recover for the public a portion of 
        the value of the public spectrum resource made available for 
        such commercial use, and (ii) to avoid unjust enrichment through 
        the method employed to permit such uses of that resource;
            (B) recover for the public an amount that, to the extent 
        feasible, equals but does not exceed (over the term of the 
        license) the amount that would have been recovered had such 
        services been licensed pursuant to the provisions of section 
        309(j) of this title and the Commission's regulations 
        thereunder; and
            (C) be adjusted by the Commission from time to time in order 
        to continue to comply with the requirements of this paragraph.

                      (3) Treatment of revenues

        (A) General rule

            Except as provided in subparagraph (B), all proceeds 
        obtained pursuant to the regulations required by this subsection 
        shall be deposited in the Treasury in accordance with chapter 33 
        of title 31.

        (B) Retention of revenues

            Notwithstanding subparagraph (A), the salaries and expenses 
        account of the Commission shall retain as an offsetting 
        collection such sums as may be necessary from such proceeds for 
        the costs of developing and implementing the program required by 
        this section and regulating and supervising advanced television 
        services. Such offsetting collections shall be available for 
        obligation subject to the terms and conditions of the receiving 
        appropriations account, and shall be deposited in such accounts 
        on a quarterly basis.

                             (4) Report

        Within 5 years after February 8, 1996, the Commission shall 
    report to the Congress on the implementation of the program required 
    by this subsection, and shall annually thereafter advise the 
    Congress on the amounts collected pursuant to such program.

(f) Preservation of low-power community television broadcasting

                  (1) Creation of class A licenses

        (A) Rulemaking required

            Within 120 days after November 29, 1999, the Commission 
        shall prescribe regulations to establish a class A television 
        license to be available to licensees of qualifying low-power 
        television stations. Such regulations shall provide that--
                (i) the license shall be subject to the same license 
            terms and renewal standards as the licenses for full-power 
            television stations except as provided in this subsection; 
            and
                (ii) each such class A licensee shall be accorded 
            primary status as a television broadcaster as long as the 
            station continues to meet the requirements for a qualifying 
            low-power station in paragraph (2).

        (B) Notice to and certification by licensees

            Within 30 days after November 29, 1999, the Commission shall 
        send a notice to the licensees of all low-power television 
        licenses that describes the requirements for class A 
        designation. Within 60 days after November 29, 1999, licensees 
        intending to seek class A designation shall submit to the 
        Commission a certification of eligibility based on the 
        qualification requirements of this subsection. Absent a material 
        deficiency, the Commission shall grant certification of 
        eligibility to apply for class A status.

        (C) Application for and award of licenses

            Consistent with the requirements set forth in paragraph 
        (2)(A) of this subsection, a licensee may submit an application 
        for class A designation under this paragraph within 30 days 
        after final regulations are adopted under subparagraph (A) of 
        this paragraph. Except as provided in paragraphs (6) and (7), 
        the Commission shall, within 30 days after receipt of an 
        application of a licensee of a qualifying low-power television 
        station that is acceptable for filing, award such a class A 
        television station license to such licensee.

        (D) Resolution of technical problems

            The Commission shall act to preserve the service areas of 
        low-power television licensees pending the final resolution of a 
        class A application. If, after granting certification of 
        eligibility for a class A license, technical problems arise 
        requiring an engineering solution to a full-power station's 
        allotted parameters or channel assignment in the digital 
        television Table of Allotments, the Commission shall make such 
        modifications as necessary--
                (i) to ensure replication of the full-power digital 
            television applicant's service area, as provided for in 
            sections 73.622 and 73.623 of the Commission's regulations 
            (47 CFR 73.622, 73.623); and
                (ii) to permit maximization of a full-power digital 
            television applicant's service area consistent with such 
            sections 73.622 and 73.623,

        if such applicant has filed an application for maximization or a 
        notice of its intent to seek such maximization by December 31, 
        1999, and filed a bona fide application for maximization by May 
        1, 2000. Any such applicant shall comply with all applicable 
        Commission rules regarding the construction of digital 
        television facilities.

        (E) Change applications

            If a station that is awarded a construction permit to 
        maximize or significantly enhance its digital television service 
        area, later files a change application to reduce its digital 
        television service area, the protected contour of that station 
        shall be reduced in accordance with such change modification.

            (2) Qualifying low-power television stations

        For purposes of this subsection, a station is a qualifying low-
    power television station if--
            (A)(i) during the 90 days preceding November 29, 1999--
                (I) such station broadcast a minimum of 18 hours per 
            day;
                (II) such station broadcast an average of at least 3 
            hours per week of programming that was produced within the 
            market area served by such station, or the market area 
            served by a group of commonly controlled low-power stations 
            that carry common local programming produced within the 
            market area served by such group; and
                (III) such station was in compliance with the 
            Commission's requirements applicable to low-power television 
            stations; and

            (ii) from and after the date of its application for a class 
        A license, the station is in compliance with the Commission's 
        operating rules for full-power television stations; or
            (B) the Commission determines that the public interest, 
        convenience, and necessity would be served by treating the 
        station as a qualifying low-power television station for 
        purposes of this section, or for other reasons determined by the 
        Commission.

                        (3) Common ownership

        No low-power television station authorized as of November 29, 
    1999, shall be disqualified for a class A license based on common 
    ownership with any other medium of mass communication.

    (4) Issuance of licenses for advanced television services to 
             television translator stations and qualifying low-
                          power television stations

        The Commission is not required to issue any additional license 
    for advanced television services to the licensee of a class A 
    television station under this subsection, or to any licensee of any 
    television translator station, but shall accept a license 
    application for such services proposing facilities that will not 
    cause interference to the service area of any other broadcast 
    facility applied for, protected, permitted, or authorized on the 
    date of filing of the advanced television application. Such new 
    license or the original license of the applicant shall be forfeited 
    after the end of the digital television service transition period, 
    as determined by the Commission. A licensee of a low-power 
    television station or television translator station may, at the 
    option of licensee, elect to convert to the provision of advanced 
    television services on its analog channel, but shall not be required 
    to convert to digital operation until the end of such transition 
    period.

                  (5) No preemption of section 337

        Nothing in this subsection preempts or otherwise affects section 
    337 of this title.

                      (6) Interim qualification

        (A) Stations operating within certain bandwidth

            The Commission may not grant a class A license to a low-
        power television station for operation between 698 and 806 
        megahertz, but the Commission shall provide to low-power 
        television stations assigned to and temporarily operating in 
        that bandwidth the opportunity to meet the qualification 
        requirements for a class A license. If such a qualified 
        applicant for a class A license is assigned a channel within the 
        core spectrum (as such term is defined in MM Docket No. 87-286, 
        February 17, 1998), the Commission shall issue a class A license 
        simultaneously with the assignment of such channel.

        (B) Certain channels off-limits

            The Commission may not grant under this subsection a class A 
        license to a low-power television station operating on a channel 
        within the core spectrum that includes any of the 175 additional 
        channels referenced in paragraph 45 of its February 23, 1998, 
        Memorandum Opinion and Order on Reconsideration of the Sixth 
        Report and Order (MM Docket No. 87-268). Within 18 months after 
        November 29, 1999, the Commission shall identify by channel, 
        location, and applicable technical parameters those 175 
        channels.

                   (7) No interference requirement

        The Commission may not grant a class A license, nor approve a 
    modification of a class A license, unless the applicant or licensee 
    shows that the class A station for which the license or modification 
    is sought will not cause--
            (A) interference within--
                (i) the predicted Grade B contour (as of the date of the 
            enactment of the Community Broadcasters Protection Act of 
            1999 [November 29, 1999], or November 1, 1999, whichever is 
            later, or as proposed in a change application filed on or 
            before such date) of any television station transmitting in 
            analog format; or
                (ii)(I) the digital television service areas provided in 
            the DTV Table of Allotments; (II) the areas protected in the 
            Commission's digital television regulations (47 CFR 
            73.622(e) and (f)); (III) the digital television service 
            areas of stations subsequently granted by the Commission 
            prior to the filing of a class A application; and (IV) 
            stations seeking to maximize power under the Commission's 
            rules, if such station has complied with the notification 
            requirements in paragraph (1)(D);

            (B) interference within the protected contour of any low-
        power television station or low-power television translator 
        station that--
                (i) was licensed prior to the date on which the 
            application for a class A license, or for the modification 
            of such a license, was filed;
                (ii) was authorized by construction permit prior to such 
            date; or
                (iii) had a pending application that was submitted prior 
            to such date; or

            (C) interference within the protected contour of 80 miles 
        from the geographic center of the areas listed in section 
        22.625(b)(1) or 90.303 of the Commission's regulations (47 CFR 
        22.625(b)(1) and 90.303) for frequencies in--
                (i) the 470-512 megahertz band identified in section 
            22.621 or 90.303 of such regulations; or
                (ii) the 482-488 megahertz band in New York.

            (8) Priority for displaced low-power stations

        Low-power stations that are displaced by an application filed 
    under this section shall have priority over other low-power stations 
    in the assignment of available channels.

(g) Evaluation

    Within 10 years after the date the Commission first issues 
additional licenses for advanced television services, the Commission 
shall conduct an evaluation of the advanced television services program. 
Such evaluation shall include--
        (1) an assessment of the willingness of consumers to purchase 
    the television receivers necessary to receive broadcasts of advanced 
    television services;
        (2) an assessment of alternative uses, including public safety 
    use, of the frequencies used for such broadcasts; and
        (3) the extent to which the Commission has been or will be able 
    to reduce the amount of spectrum assigned to licensees.

(h) Definitions

    As used in this section:

                  (1) Advanced television services

        The term ``advanced television services'' means television 
    services provided using digital or other advanced technology as 
    further defined in the opinion, report, and order of the Commission 
    entitled ``Advanced Television Systems and Their Impact Upon the 
    Existing Television Broadcast Service'', MM Docket 87-268, adopted 
    September 17, 1992, and successor proceedings.

                     (2) Designated frequencies

        The term ``designated frequency'' means each of the frequencies 
    designated by the Commission for licenses for advanced television 
    services.

                   (3) High definition television

        The term ``high definition television'' refers to systems that 
    offer approximately twice the vertical and horizontal resolution of 
    receivers generally available on February 8, 1996, as further 
    defined in the proceedings described in paragraph (1) of this 
    subsection.

(June 19, 1934, ch. 652, title III, Sec. 336, as added Pub. L. 104-104, 
title II, Sec. 201, Feb. 8, 1996, 110 Stat. 107; Pub. L. 106-113, div. 
B, Sec. 1000(a)(9) [title V, Sec. 5008(c)], Nov. 29, 1999, 113 Stat. 
1536, 1501A-595.)


                               Amendments

    1999--Subsecs. (f) to (h). Pub. L. 106-113 added subsec. (f) and 
redesignated former subsecs. (f) and (g) as (g) and (h), respectively.


         Congressional Findings Regarding Low-Power Broadcasters

    Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title V, Sec. 5008(b)], 
Nov. 29, 1999, 113 Stat. 1536, 1501A-594, provided that: ``Congress 
finds the following:
        ``(1) Since the creation of low-power television licenses by the 
    Federal Communications Commission, a small number of license holders 
    have operated their stations in a manner beneficial to the public 
    good providing broadcasting to their communities that would not 
    otherwise be available.
        ``(2) These low-power broadcasters have operated their stations 
    in a manner consistent with the programming objectives and hours of 
    operation of full-power broadcasters providing worthwhile services 
    to their respective communities while under severe license 
    limitations compared to their full-power counterparts.
        ``(3) License limitations, particularly the temporary nature of 
    the license, have blocked many low-power broadcasters from having 
    access to capital, and have severely hampered their ability to 
    continue to provide quality broadcasting, programming, or 
    improvements.
        ``(4) The passage of the Telecommunications Act of 1996 [Pub. L. 
    104-104, see Short Title of 1996 Amendment note set out under 
    section 609 of this title] has added to the uncertainty of the 
    future status of these stations by the lack of specific provisions 
    regarding the permanency of their licenses, or their treatment 
    during the transition to high definition, digital television.
        ``(5) It is in the public interest to promote diversity in 
    television programming such as that currently provided by low-power 
    television stations to foreign-language communities.''

                        Executive Order No. 13038

    Ex. Ord. No. 13038, Mar. 11, 1997, 62 F.R. 12065, as amended by Ex. 
Ord. No. 13062, Sec. 5, Sept. 29, 1997, 62 F.R. 51756; Ex. Ord. No. 
13065, Oct. 22, 1997, 62 F.R. 55329; Ex. Ord. No. 13081, Apr. 30, 1998, 
63 F.R. 24385; Ex. Ord. No. 13102, Sept. 25, 1998, 63 F.R. 52125, which 
established the Advisory Committee on the Public Interest Obligations of 
Digital Television Broadcasters, was revoked by Ex. Ord. No. 13138, 
Sec. 3(b), Sept. 30, 1999, 64 F.R. 53880, set out as a note under 
section 14 of the Federal Advisory Committee Act in the Appendix to 
Title 5, Government Organization and Employees.
