[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR201.17]
[Page 360-371]
TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
CONGRESS
PART 201--GENERAL PROVISIONS--Table of Contents
Sec. 201.17 Statements of Account covering compulsory licenses for secondary transmissions by cable systems.
(a) General. This section prescribes rules pertaining to the deposit
of Statements of Account and royalty fees in the Coypright Office as
required by section 111(d)(2) of title 17 of the United States Code in
order for secondary transmissions of cable systems to be subject to
compulsory licensing.
(b) Definitions. (1) Gross receipts for the ``basic service of
providing secondary transmissions of primary broadcast transmitters''
include the full amount of monthly (or other periodic) service fees for
any and all services or tiers of services which include one or more
secondary transmissions of television or radio broadcast signals, for
additional set fees, and for converter fees. In no case shall gross
receipts be less than the cost of obtaining the signals of primary
broadcast transmitters for subsequent retransmission. All such gross
receipts shall be aggregated and the DSE calculations shall be made
against the aggregated amount. Gross receipts for secondary transmission
services do not include installation (including connection, relocation,
disconnection, or reconnection) fees, separate charges for security,
alarm or facsimile services, charges for late payments, or charges for
pay cable or other program origination services: Provided That, the
origination services are not offered in combination with secondary
transmission service for a single fee.
(2) A cable system is a facility, located in any State, Territory,
Trust Territory, or Possession, that in whole or in part receives
signals transmitted or programs broadcast by one or more television
broadcast stations licensed by the Federal Communications Commission,
and makes secondary transmissions of such signals or programs by wires,
cables, microwave, or other communications channels to subscribing
members of the public who pay for such service. A system that meets this
definition is considered a ``cable system'' for copyright purposes, even
if the FCC excludes it from being considered a ``cable system'' because
of the number or nature of its subscribers or the nature of its
secondary transmissions. The statements of account and royalty fees to
be deposited under Sec. 201.17 of this section, shall be recorded and
deposited by each individual cable system desiring its secondary
transmissions to be subject to compulsory licensing. The owner of each
individual cable system on the last day of the accounting period covered
by a Statement of Account is responsible for depositing the Statement of
Account and remitting the copyright royalty fees. For these purposes,
and the purpose of Sec. 201.17 of this section, an ``individual'' cable
system is each cable system recognized as a distinct entity under the
rules, regulations, and practices of the Federal Communications
Commission in effect on the last day of the accounting period covered by
a Statement of Account, in the case of the preparation and deposit of a
Statement of Account and copyright royalty fee. For these purposes, two
or more cable facilities are considered as one individual cable system
if the facilities are either:
(i) In contiguous communities under common ownership or control or
(ii) Operating from one headend.
(3) FCC means the Federal Communications Commission.
(4) In the case of cable systems which make secondary transmissions
of all available FM radio signals, which signals are not electronically
processed by the system as separate and discrete signals, an FM radio
signal is ``generally receivable'' if:
(i) It is usually carried by the system whenever it is received at
the system's headend, and
(ii) As a result of monitoring at reasonable times and intervals, it
can be expected to be received at the system's headend, with the
system's FM antenna, at least three consecutive hours each day at the
same time each day, five or more days a week, for four or more weeks
during any calendar quarter, with a strength of not less than fifty
microvolts per meter measured at the foot of the tower or pole to which
the antenna is attached.
(5) The terms primary transmission, secondary transmission, local
service area of a primary transmitter, distant signal
[[Page 361]]
equivalent, network station, independent station, and noncommercial
educational station have the meanings set forth in section 111(f) of
title 17 of the United States Code, as amended by Pub. L. 94-553 and
Pub. L. 103-369.
(6) A primary transmitter is a ``distant'' station, for purposes of
this section, if the programming of such transmitter is carried by the
cable system in whole or in part beyond the local service area of such
primary transmitter.
(7) A translator station is, with respect to programs both
originally transmitted and retransmitted by it, a primary transmitter
for the purposes of this section. A translator station which retransmits
the programs of a network station will be considered a network station;
a translator station which retransmits the programs of an independent
station shall be considered an independent station; and a translator
station which retransmits the programs of a noncommercial educational
station shall be considered a noncommercial educational station. The
determination of whether a translator station should be identified as a
``distant'' station depends on the local service area of the translator
station.
(8) For purposes of this section, the ``rules and regulations of the
FCC in effect on October 19, 1976,'' which permitted a cable system, at
its election, to omit the retransmission of a particular program and
substitute another program in its place, refers to that portion of
former 47 CFR 76.61(b)(2), revised June 25, 1981, and Sec. 76.63
(referring to Sec. 76.61(b)(2)), deleted June 25, 1981, concerning the
substitution of a program that is primarily of local interest to the
distant community (e.g., a local news or public affairs program).
(9) For purposes of this section, the ``rules and regulations of the
FCC'', which require a cable system to omit the retransmission of a
particular program and substitute another program in its place, refers
to 47 CFR 76.67.
(10) For purposes of this section, a cable system ``lacks the
activated channel capacity to retransmit on a full-time basis all
signals which it is authorized to carry'' only if:
(i) All of its activated television channels are used exclusively
for the secondary transmission of television signals; and
(ii) The number of primary television transmitters secondarily
transmitted by the cable system exceeds the number of its activated
television channels.
(c) Accounting periods and deposit. (1) Statements of Account shall
cover semiannual accounting periods of (i) January 1 through June 30,
and (ii) July 1 through December 31, and shall be deposited in the
Copyright Office, together with the total royalty fee for such
accounting periods as prescribed by section 111(d)(1) (B), (C), or (D)
of title 17, by not later than the immediately following August 29, if
the Statement of Account covers the January 1 through June 30 accounting
period, and by not later than the immediately following March 1, if the
Statement of Account covers the July 1 through December 31 accounting
period.
(2) Upon receiving a Statement of Account and royalty fee, the
Copyright Office will make an official record of the actual date when
such Statement and fee were physically received in the Copyright Office.
Thereafter, the Office will examine the Statement and fee for obvious
errors or omissions appearing on the face of the documents, and will
require that any such obvious errors or omissions be corrected before
final processing of the documents is completed. If, as the result of
communications between the Copyright Office and the cable system, an
additional fee is deposited or changes or additions are made in the
Statement of Account, the date that additional deposit or information
was actually received in the Office will be added to the official record
of the case. However, completion by the Copyright Office of the final
processing of a Statement of Account and royalty fee deposit shall
establish only the fact of such completion and the date or dates of
receipt shown in the official record. It shall in no case be considered
a determination that the Statement of Account was, in fact, properly
prepared and accurate, that the correct amount of the royalty fee had
been deposited, that the statutory time limits for filing had been met,
or that any other requirements to qualify
[[Page 362]]
for a compulsory license have been satisfied.
(3) Statements of Account and royalty fees received before the end
of the particular accounting period they purport to cover will not be
processed by the Copyright Office. Statements of Account and royalty
fees received after the filing deadlines of August 29 or March 1,
respectively, will be accepted for whatever legal effect they may have,
if any.
(4) In the Register's discretion, four years after the close of any
calendar year, the Register may, close out the royalty payments account
for that calendar year, and may treat any funds remaining in such
account and any subsequent deposits that would otherwise be attributable
to that calendar year as attributable to the succeeding calendar year.
(d) Forms. (1) Each Statement of Account shall be furnished on an
appropriate form prescribed by the Copyright Office, and shall contain
the information required by that form and its accompanying instructions.
Computation of distant signal equivalents and the copyright royalty fee
shall be in accordance with the procedures set forth in the forms.
Copies of Statement of Account forms are available free upon request to
the Licensing Division, United States Copyright Office, Library of
Congress, Washington, DC 20557.
(2) The forms prescribed by the Copyright Office are designated
``Statement of Account for Secondary Transmissions By Cable Systems'':
(i) Form SA1-2--``Short Form'' for use by cable systems whose
semiannual gross receipts for secondary transmission total less than
$292,000; and
(ii) Form SA3--``Long Form'' for use by cable systems whose
semiannual gross receipts for secondary transmission total $292,000 or
more.
(e) Contents. Each Statement of Account shall contain the following
information:
(1) A clear designation of the accounting period covered by the
Statement.
(2) The designation ``Owner,'' followed by:
(i) The full legal name of the owner of the cable system. The
`owner' of the cable system is the individual or entity that provides
the retransmission service and collects payment from the end user either
directly or indirectly through a third party. If the owner is a
partnership, the name of the partnership is to be followed by the name
of at least one individual partner;
(ii) Any other name or names under which the owner conducts the
business of the cable system; and
(iii) The full mailing address of the owner.
Ownership, other names under which the owner conducts the business of
the cable system, and the owner's mailing address shall reflect facts
existing on the last day of the accounting period covered by the
Statement of Account.
(3) The designation ``System,'' followed by:
(i) Any business or trade names used to identify the business and
operation of the system, unless these names have already been given
under the designation ``Owner''; and
(ii) The full mailing address of the system, unless such address is
the same as the address given under the designation ``Owner''.
Business or trade names used to identify the business and operation of
the system, and the system's mailing address, shall reflect the facts
existing on the last day of the accounting period covered by the
Statement of Account.
(4) The designation ``Area Served'', followed by the name of the
community or communities served by the system. For this purpose a
``community'' is the same as a ``community unit'' as defined in FCC
rules and regulations.
(5) The designation ``Channels,'' followed by:
(i) The number of channels on which the cable system made secondary
transmissions to its subscribers, and
(ii) The cable system's total activated channel capacity, in each
case during the period covered by the Statement.
(6) The designation ``Secondary Transmission Service: Subscribers
and Rates'', followed by:
(i) A brief description of each subscriber category for which a
charge is made by the cable system for the basic
[[Page 363]]
service of providing secondary transmissions of primary broadcast
transmitters;
(ii) The number of subscribers to the cable system in each such
subscriber category; and
(iii) The charge or charges made per subscriber to each such
subscriber category for the basic service of providing such secondary
transmissions. Standard rate variations within a particular category
should be summarized; discounts allowed for advance payment should not
be included. For these purposes:
(A) The description, the number of subscribers, and the charge or
charges made shall reflect the facts existing on the last day of the
period covered by the Statement; and
(B) Each entity (for example, the owner of a private home, the
resident of an apartment, the owner of a motel, or the owner of an
apartment house) which is charged by the cable system for the basic
service of providing secondary transmissions shall be considered one
subscriber.
(7) The designation ``Gross Receipts'', followed by the gross amount
paid to the cable system by subscribers for the basic service of
providing secondary transmissions of primary broadcast transmissions
during the period covered by the Statement of Account. If the cable
system maintains its revenue accounts on an accrual basis, gross
receipts for any accounting period includes all such amounts accrued for
secondary transmission service furnished during that period, regardless
of when accrued:
(i) Less the amount of any bad debts actually written-off during
that accounting period, excluding bad debts for secondary transmission
service furnished before January 1, 1978;
(ii) Plus the amount of any previously written-off bad debts for
secondary transmission service which were actually recovered during that
accounting period, excluding bad debt recoveries for secondary
transmission service furnished before January 1, 1978.
If the cable system maintains its revenue accounts on a cash basis,
gross receipts for any accounting period includes all such amounts
actually received by the cable system during that accounting period,
excluding amounts paid for secondary transmission service furnished
before January 1, 1978; however, amounts received before January 1,
1978, for secondary transmission service furnished after that date, are
to be considered as if they had been received during the accounting
period in which the service covered by such payments was furnished.
(8) The designation ``Services Other Than Secondary Transmissions:
Rates,'' followed by a description of each package of service which
consists solely of services other than secondary transmission services,
for which a separate charge was made or established, and which the cable
system furnished or made available to subscribers during the period
covered by the Statement of Account, together with the amount of such
charge. However, no information need be given concerning services
furnished at cost. Specific amounts charged for pay cable programming
need not be given if the rates are on a variable, per-program basis.
(The fact of such variable charge shall be indicated.)
(9) The designation ``Primary Transmitters: Television'', followed
by an identification of all primary television transmitters whose
signals were carried by the cable system during the period covered by
the Statement of Account, other than primary transmitters of programs
carried by the cable system exclusively pursuant to rules, regulations,
or authorizations of the FCC in effect on October 19, 1976, permitting
the substitution of signals under certain circumstances, and required to
be specially identified by paragraph (e)(11) of this section, together
with the information listed below:
(i) The station call sign of the primary transmitter.
(ii) The name of the community to which that primary transmitter is
licensed by the FCC (in the case of domestic signals) or with which that
primary transmitter is identified (in the case of foreign signals).
(iii) The number of the channel upon which that primary transmitter
broadcasts in the community to which that primary transmitter is
licensed by the
[[Page 364]]
FCC (in the case of domestic signals) or with which that primary
transmitter is identified (in the case of foreign signals).
(iv) A designation as to whether that primary transmitter is a
``network station'', an ``independent station'', or a ``noncommercial
educational station''.
(v) A designation as to whether that primary transmitter is a
``distant'' station.
(vi) If that primary transmitter is a ``distant'' station, a
specification of whether the signals of that primary transmitter are
carried:
(A) On a part-time basis where full-time carriage is not possible
because the cable system lacks the activated channel capacity to
retransmit on a full-time basis all signals which it is authorized to
carry; or
(B) On any other basis.
If the signals of that primary transmitter are carried on a part-time
basis because of lack of activated channel capacity, the Statement shall
also include a log showing the dates on which such carriage occurred,
and the hours during which such carriage occurred on those dates. Hours
of carriage shall be accurate to the nearest quarter-hour, except that,
in any case where such part-time carriage extends to the end of the
broadcast day of the primary transmitter, an approximate ending hour may
be given if it is indicated as an estimate.
(vii) The information indicated by paragraph (e)(9), subclauses (v)
and (vi) of this section, is not required to be given by any cable
system that appropriately completed Form SA1-2 for the period covered by
the Statement.
(viii) Notwithstanding the requirements of this section, where a
cable system carried a distant primary transmitter under FCC rules and
regulations in effect on October 19, 1976 which permitted carriage of
specific network programs on a part-time basis in certain circumstances
(former 47 CFR 76.59 (d) (2) and (4), 76.61(e) (2) and (4), and 76.63,
referring to Sec. 76.61(e) (2) and (4), all of which were deleted June
25, 1981), carriage of that primary transmitter on that basis need not
be reported, and that carriage is to be excluded in computing the
distant signal equivalent of that primary transmitter.
(10) The designation ``Primary Transmitters: Radio'', followed by an
identification of primary radio transmitters whose signals were carried
by the cable system during the period covered by the Statement of
Account, together with the information listed below:
(i) A designation as to whether each primary transmitter was
electronically processed by the system as a separate and discrete
signal.
(ii) The station call sign of each:
(A) AM primary transmitter;
(B) FM primary transmitter, the signals of which were electronically
processed by the system as separate and discrete signals; and
(C) FM primary transmitter carried on an all-band retransmission
basis, the signals of which were generally receivable by the system.
(iii) A designation as to whether the primary transmitter is AM or
FM.
(iv) The name of the community to which that primary transmitter is
licensed by the FCC (in the case of domestic signals) or with which that
primary transmitter is identified (in the case of foreign signals).
(11) A special statement and program log, which shall consist of the
information indicated below for all nonnetwork television programming
that, during the period covered by the Statement, was carried in whole
or in part beyond the local service area of the primary transmitter of
such programming under (i) rules or regulations of the FCC requiring a
cable system to omit the further transmission of a particular program
and permitting the substitution of another program in place of the
omitted transmission; or (ii) rules, regulations, or authorizations of
the FCC in effect on October 19, 1976, permitting a cable system, at its
election, to omit the further transmission of a particular program and
permitting the substitution of another program in place of the omitted
transmission:
(A) The name or title of the substitute program.
(B) Whether the substitute program was transmitted live by its
primary transmitter.
[[Page 365]]
(C) The station call sign of the primary transmitter of the
substitute program.
(D) The name of the community to which the primary transmitter of
the substitute program is licensed by the FCC (in the case of domestic
signals) or with which that primary transmitter is identified (in the
case of foreign signals).
(E) The date when the secondary transmission of the substitute
program occurred, and the hours during which such secondary transmission
occurred on that date accurate to the nearest 5 minutes.
(F) A designation as to whether deletion of the omitted program was
permitted by the rules, regulations, or authorizations of the FCC in
effect on October 19, 1976, or was required by the rules, regulations,
or authorizations of the FCC.
(12) A statement of the total royalty fee payable for the period
covered by the Statement of Account, together with a royalty fee
analysis which gives a clear, complete, and detailed presentation of the
determination of such fee. This analysis shall present in appropriate
sequence all facts, figures, and mathematical processes used in
determining such fee, and shall do so in such manner as required in the
appropriate form so as to permit the Copyright Office to verify readily,
from the face of the Statement of Account, the accuracy of such
determination and fee. The royalty fee analysis is not required to be
given by any cable system whose gross receipts from subscribers for the
period covered by the Statement of Account, for the basic service of
providing secondary transmissions of primary broadcast transmissions,
total $75,800 or less.
(13) The name, address, and telephone number of an individual who
may be contacted by the Copyright Office for further information about
the Statement of Account.
(14) The handwritten signature of:
(i) The owner of the cable system or a duly authorized agent of the
owner, if the owner is not a partnership or a corporation; or
(ii) A partner, if the owner is a partnership; or
(iii) An officer of the corporation, if the owner is a corporation.
The signature shall be accompanied by:
(A) The printed or typewritten name of the person signing the
Statement of Account;
(B) The date of signature;
(C) If the owner of the cable system is a partnership or a
corporation, by the title or official position held in the partnership
or corporation by the person signing the Statement of Account;
(D) A certification of the capacity of the person signing; and
(E) A declaration of the veracity of the statements of fact
contained in the Statement of Account and the good faith of the person
signing in making such statement of fact.
(f) Computation of distant signal equivalents. (1) A cable system
that elects to delete a particular television program and substitute for
that program another television program (``substitute program'') under
rules, regulations, or authorizations of the FCC in effect on October
19, 1976, which permit a cable system, at its election, to omit the
retransmission of a particular program and substitute another program in
its place shall compute the distant signal equivalent (``DSE'') of each
primary transmitter that broadcasts one or more substitute programs by
dividing:
(i) The number of the primary transmitter's live, nonnetwork,
substitute programs that were carried by the cable system, during the
period covered by the Statement of Account, in substitution for programs
deleted at the option of the system; by
(ii) The number of days in the year in which the substitution
occurred.
(2)(i) Where a cable system carries a primary transmitter on a full-
time basis during any portion of an accounting period, the system shall
compute a DSE for that primary transmitter as if it was carried full-
time during the entire accounting period.
(ii) Where a cable system carries a primary transmitter solely on a
substitute or part-time basis, in accordance with paragraph (f)(3) of
this section, the system shall compute a DSE for that primary
transmitter based on its cumulative carriage on a substitute or part-
time basis. If that primary
[[Page 366]]
transmitter is carried on a full-time basis as well as on a substitute
or part-time basis, the full DSE for that primary transmitter shall be
the full DSE type value for that primary transmitter, for the entire
accounting period.
(3)(i) In computing the DSE of a primary transmitter in a particular
case of carriage before July 1, 1981, the cable system may make no
prorated adjustments other than those specified as permissible
``exceptions and limitations'' in the definition of ``distant signal
equivalent'' in the fifth paragraph of section 111(f) of title 17 of the
United States Code, as amended by Pub. L. 94-553. Four prorated
adjustments, as prescribed in the fourth and fifth sentences of said
definition, are permitted under certain conditions where:
(A) A station is carried pursuant to the late-night programming
rules of the Federal Communications Commission in effect on the date of
carriage;
(B) A station is carried pursuant to the specialty programming rules
of the Federal Communications Commission in effect on the date of
carriage;
(C) A station is carried on a part-time basis where full-time
carriage is not possible because the cable system lacks the activated
channel capacity to retransmit on a full-time basis all signals which it
is authorized to carry; and
(D) A station is carried on a ``substitute'' basis under rules,
regulations, or authorizations of the Federal Communications Commission
in effect on October 19, 1976.
(ii) In computing the DSE of a primary transmitter in a particular
case of carriage on or after July 1, 1981, the cable system may make no
prorated adjustments other than those specified as permissible
``exceptions and limitations'' in the definition of ``distant signal
equivalent'' in the fifth paragraph of section 111(f) of title 17 of the
United States Code, as amended by Pub. L. 94-553, and which remain in
force under that provision. Two prorated adjustments, as prescribed in
the fourth and fifth sentences of said definition, are permitted under
certain conditions where:
(A) A station is carried on a part-time basis where full-time
carriage is not possible because the cable system lacks the activated
channel capacity to retransmit on a full-time basis all signals which it
is authorized to carry; and
(B) A station is carried on a ``substitute'' basis under rules,
regulations, or authorizations of the Federal Communications Commission
in effect on October 19, 1976, which permitted a cable system, at its
election, to omit the retransmission of a particular program and
substitute another program in its place.
(4) In computing a DSE, a cable system may round off to the third
decimal point. If a DSE is rounded off in any case in a Statement of
Account, it must be rounded off throughout the Statement. Where a cable
system has chosen to round off, and the fourth decimal point for a
particular DSE value would, without rounding off, have been 1, 2, 3, or
4, the third decimal point remains unchanged; if, in such a case, the
fourth decimal point would, without rounding off, be 5, 6, 7, 8, or 9,
the third decimal point must be rounded off to the next higher number.
(5) For the purposes of computing DSE values, specialty primary
television transmitters in the United States and all Canadian and
Mexican primary television transmitters shall be assigned a value of
one.
(g) Computation of the copyright royalty fee: Partially distant
stations. A cable system located partly within and partly without the
local service area of a primary television transmitter (``partially
distant station'') computes the royalty fee specified in section
111(d)(1)(B) (ii), (iii), and (iv) of the Copyright Act (``DSE fee'') by
excluding gross receipts from subscribers located within that station's
local service area from total gross receipts. A cable system which
carries two or more partially distant stations with local service areas
that do not exactly coincide shall compute a separate DSE fee for each
group of subscribers who are located outside of the local service areas
of exactly the same complement of distant stations. Computation of the
DSE fee for each subscriber group is to be based on:
[[Page 367]]
(1) The total distant signal equivalents of that group's complement
of distant stations, and
(2) The total gross receipts from that group of subscribers. The
copyright royalty fee for that cable system is:
(i) The total of the subscriber group royalty fees thus computed, or
(ii) 0.893 of 1 percent of the system's gross receipts from all
subscribers, whichever is larger.
(h) Computation of the copyright royalty fee pursuant to the 1982
cable rate adjustment. (1) For the purposes of this paragraph, in
addition to the definitions of paragraph (b) of this section, the
following definitions shall also apply:
(i) Current base rate means the applicable royalty rates in effect
on December 31, 1982, as reflected in 37 CFR 256.2(a).
(ii) If the 3.75% rate does not apply to certain DSE's in the case
of a cable system located wholly or in part within a top 100 television
market, the current base rate together with the surcharge shall apply.
However, the surcharge shall not apply for carriage of a particular
signal first carried prior to March 31, 1972. With respect to statements
of account covering the filing period beginning January 1, 1990, and
subsequent filing periods, the current base rate together with the
surcharge shall apply only to those DSE's that represent commercial VHF
signals which place a predicted Grade B contour, in whole or in part,
over a cable system. The surcharge will not apply if the signal is
exempt from the syndicated exclusivity rules in effect on June 24, 1981.
(iii) The 3.75% rate means the rate established by 37 CFR 256.2(c),
in effect on March 15, 1983.
(iv) Top 100 television market means a television market defined or
interpreted as being within either the ``top 50 television markets'' or
``second 50 television markets'' in accordance with 47 CFR 76.51, in
effect on June 24, 1981.
(v) The 1982 cable rate adjustment means the rate adjustment adopted
by the Copyright Royalty Tribunal on October 20, 1982 (CRT Docket No.
81-2, 47 FR 52146, November 19, 1982).
(vi) The terms DSE or DSE's mean ``distant signal equivalent(s)'' as
defined in 17 U.S.C. 111(f) and any fraction thereof.
(2) A cable system filing Form SA3 shall compute its royalty fee in
the following manner:
(i) The cable system shall first determine those DSE's to which the
3.75% rate established by 37 CFR 256.2(c) applies.
(ii) If the 3.75% rate does not apply to certain DSE's in the case
of a cable system located wholly or in part within a top 100 television
market, the current base rate together with the surcharge shall apply.
However, the surcharge shall not apply for carriage of a particular
signal first carried prior to March 31, 1972. With respect to statements
of account covering the filing period beginning January 1, 1990, and
subsequent filing periods, the current base rate together with the
surcharge shall apply only to those DSE's that represent commercial VHF
signals which place a predicted Grade B contour, in whole or in part,
over a cable system. The surcharge will not apply if the signal is
exempt from the syndicated exclusivity rules in effect on June 24, 1981.
(iii) If the 3.75% rate does not apply to certain DSE's, in the case
of a cable system located wholly outside a top 100 television market,
the current base rate shall apply.
(iv) Commencing with the semiannual accounting period of January 1,
1998, through June 30, 1998, the 3.75% rate applies to certain DSE's
with respect to the communities within the cable system where carriage
would not have been permitted under the rules and regulations of the
Federal Communications Commission in effect on June 24, 1981, but in all
other communities within the cable system, the current base rate and the
syndicated exclusivity surcharge, where applicable, shall apply. Such
computation shall be made as provided for on Form SA3. The calculations
shall be based upon the gross receipts from all subscribers, within the
relevant communities, for the basic service of providing secondary
transmissions of primary broadcast transmitters, without regard to
whether those subscribers actually received the station in question. For
[[Page 368]]
partially-distant stations, gross receipts shall be the total gross
receipts from subscribers outside the local service area.
(3) A cable system whose semiannual gross receipts for secondary
transmissions totalled $214,000 or more during the period January 1,
1983, through June 30, 1983, shall compute its royalty fee for carriage
during that period in the following manner:
(i) Copyright royalty fees must be paid on the basis of carriage for
the entire accounting period except where proration of the DSE is
permitted as described in paragraph (f)(3) of this section.
(ii) Where a distant signal was carried at any time only between
January 1, 1983, and March 14, 1983;
(A) In the case of a cable system located wholly or in part within a
top 100 television market, the current base rate, together with the
surcharge shall apply. However, the surcharge shall not apply for
carriage of a particular signal first carried prior to March 31, 1972.
(B) In case of a cable system located wholly outside a top 100
television market, the current base rate shall apply.
(iii) Where a distant signal was carried at any time after March 14,
1983;
(A) The cable system shall first determine those DSE's to which the
3.75% rate established by 37 CFR 256.2(c) applies.
(B) If the 3.75% rate is applicable to a particular DSE, it shall be
applied against the per centum .5967 (representing the number of days
from March 15, 1983, through June 30, 1983, inclusive, in relation to
the entire accounting period); and either
(1) In the case of a cable system located wholly or in part within a
top 100 television market, the current base rate, together with the
surcharge, applied against the per centum .4033 (representing the number
of days from January 1, 1983, through March 14, 1983, inclusive, in
relation to the entire accounting period); however, the surcharge shall
not apply for carriage of a particular signal first carried prior to
March 31, 1972; or
(2) In the case of a cable system located wholly outside a top 100
television market, the current base rate applied against the per centum
.4033.
(C) If the 3.75% rate does not apply to certain DSE's, in the case
of a cable system located wholly or in part within a top 100 television
market, the current base rate together with the surcharge shall apply.
However, the surcharge shall not apply for carriage of a particular
signal first carried prior to March 31, 1972.
(D) If the 3.75% rate does not apply to certain DSE's, in the case
of a cable system located wholly outside a top 100 television market,
the current base rate shall apply.
(4)(i) Separate Supplemental DSE Schedules as prescribed by the
Copyright Office shall be completed and filed by a cable system affected
by the 1982 cable rate adjustment for the accounting periods January 1,
1983, through June 30, 1983 (83-1), and July 1, 1983, through December
31, 1983 (83-2). Each Supplemental DSE schedule shall contain the
information required by that form and its accompanying instructions.
(ii) The Supplemental DSE Schedule will be mailed to all cable
systems whose gross receipts for secondary transmissions total $214,000
or more either for accounting period 83-1 or for 83-2, and shall be
completed and returned to the Copyright Office with the supplemental
royalty fee due, if any, within sixty-five (65) days from the date of
mailing by the Copyright Office.
(iii) Cable systems located wholly outside all major and smaller
television markets as defined by the FCC are not affected by the 1982
cable rate adjustment. Such systems shall complete a certifying
statement provided in the Supplemental DSE Schedule and return it within
sixty-five days from the date of mailing by the Copyright Office.
(5)(i) It shall be presumed that the 3.75% rate of 37 CFR 308.2(c)
applies to DSE's accruing from newly added distant signals, carried for
the first time by a cable system after June 24, 1981.
(ii) The presumption of paragraph (h)(5)(i) of this section can be
rebutted in whole or in part:
(A) By actual carriage of a particular distant signal prior to June
25, 1981, as
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reported in Statements of Account duly filed with the Copyright Office
(``actual carriage''), unless the prior carriage was not permitted by
the FCC; or
(B) By carriage of no more than the number of distant signals which
was or would have been allotted to the cable system under the FCC's
quota for importation of network and nonspecialty independent stations
(47 CFR 76.59(b), 76.61 (b) and (c) and 76.63, referring to 76.61 (b)
and (c), in effect on June 24, 1981).
(6) To qualify as an FCC-permitted signal on the ground of
individual waiver of the FCC rules (47 CFR 76.7 in effect on June 24,
1981), the waiver must have actually been granted by the FCC, and the
signal must have been first carried by the cable system after April 15,
1976.
(7) Expanded geographic carriage after June 24, 1981, of a signal
previously carried within only certain parts of a cable system is
governed by the current base rate and the surcharge, if applicable.
(8) In cases of expanded temporal carriage of the same signal,
previously carried pursuant to the FCC's former part-time or substitute
carriage rules (47 CFR 76.61(b)(2), 76.61 (e)(1) and (e)(3), and 76.63,
referring to 76.61 (e)(1) and (e)(3), in effect on June 24, 1981), the
3.75% rate shall be applied to any additional fraction of a DSE accruing
from the expanded temporal carriage of that signal. To identify such
additional DSE's, a comparison shall be made of DSE's reported for that
signal in any single accounting period prior to the July 1, 1981, to
December 31, 1981, period (81-2), as designated by the cable system,
with the DSE's for that same signal reported in the current relevant
accounting period.
(9) Substitution of like signals pursuant to 37 CFR 256.2(c) is
possible at the relevant non-3.75% rate (the surcharge together with the
current base rate, or the current base rate alone) only if the
substitution does not exceed the number of distant signals which was or
would have been allotted to the cable system under the FCC's television
market quota for importation of network and nonspecialty independent
stations (47 CFR 76.59(b), 76.61 (b) and (c), and 76.63, referring to
76.61 (b) and (c), in effect on June 24, 1981.
(i) Royalty fee payment. (1) All royalty fees may be paid by
electronic transfer of funds, provided the payment is received in the
designated United States Federal Reserve Bank by the filing deadline for
the relevant accounting period. Except in the case of an electronic
payment, the royalty fee payable for the period covered by the Statement
of Account shall accompany that Statement of Account and shall be
deposited at the Copyright Office with it. Payment must be in the form
of a certified check, cashier's check, or a money order, payable to:
Register of Copyrights; or a United States Treasury electronic payment.
(2) Royalty fee payments submitted as a result of late or amended
filings shall include interest. Interest shall begin to accrue beginning
on the first day after the close of the period for filing statements of
account for all underpayments of royalties for the cable compulsory
license occurring within that accounting period. The accrual period
shall end on the date appearing on the certified check, cashier's check,
money order or electronic payment submitted by a cable system, provided
that such payment is received by the Copyright Office within five
business days of that date. If the payment is not received by the
Copyright Office within five business days of its date, then the accrual
period shall end on the date of actual receipt by the Copyright Office.
(i) The interest rate applicable to a specific accounting period
beginning with the 1992/2 period shall be the Current Value of Funds
Rate, as established by section 8025.40 of the Treasury Financial Manual
and published in the Federal Register, in effect on the first business
day after the close of the filing deadline for that accounting period.
Cable operators wishing to obtain the interest rate for a specific
accounting period may do so by consulting the Federal Register for the
applicable Current Value of Funds Rate, or by contacting the Licensing
Division of the Copyright Office.
(ii) The interest rate applicable to a specific accounting period
earlier than the 1992/2 period shall be the rate fixed
[[Page 370]]
by the Licensing Division of the Copyright Office pursuant to 37 CFR
201.17(i) in effect on June 30, 1992.
(iii) Interest is not required to be paid on any royalty
underpayment or late payment from a particular accounting period if the
interest charge is less than or equal to five dollars ($5.00).
(j) Corrections, supplemental payments, and refunds. (1) Upon
compliance with the procedures and within the time limits set forth in
paragraph (j)(3) of this section, corrections to Statements of Account
will be placed on record, supplemental royalty fee payments will be
received for deposit, or refunds will be issued, in the following cases:
(i) Where, with respect to the accounting period covered by a
Statement of Account, any of the information given in the Statement
filed in the Copyright Office is incorrect or incomplete;
(ii) Where, for any reason except that mentioned in paragraph
(j)(1)(iii) of this section, calculation of the royalty fee payable for
a particular accounting period was incorrect, and the amount deposited
in the Copyright Office for that period was either too high or too low;
or
(iii) Where, for the semiannual accounting period of January 1,
1978, through June 30, 1978, the total royalty fee deposited was
incorrect because the cable operator failed to compute royalties
attributable to carriage of late-night, specialty, or part-time
programming between January 1, 1978, and February 9, 1978.
(2) Corrections to Statements of Account will not be placed on
record, supplemental royalty fee payments will not be received for
deposit, and refunds will not be issued, where the information in the
Statements of Account, the royalty fee calculations, or the payments
were correct as of the date on which the accounting period ended, but
changes (for example, addition or deletion of a distant signal) took
place later.
(3) Requests that corrections to a Statement of Account be placed on
record, that fee payments be accepted, or requests for the issuance of
refunds, shall be made only in the cases mentioned in paragraph (j)(1)
of this section. Such requests shall be addressed to the Licensing
Division of the Copyright Office, and shall meet the following
conditions:
(i) The request must be in writing, must clearly identify its
purpose, and, in the case of a request for a refund, must be received in
the Copyright Office before the expiration of 60 days from the last day
of the applicable Statement of Account filing period, or before the
expiration of 60 days from the date of receipt at the Copyright Office
of the royalty payment that is the subject of the request, whichever
time period is longer. A request made by telephone or by telegraphic or
similar unsigned communication, will be considered to meet this
requirement if it clearly identifies the basis of the request, if it is
received in the Copyright Office within the required 60-day period, and
if a written request meeting all the conditions of this paragraph (j)(3)
is also received in the Copyright Office within 14 days after the end of
such 60-day period;
(ii) The Statement of Account to which the request pertains must be
sufficiently identified in the request (by inclusion of the name of the
owner of the cable system, the community or communities served, and the
accounting period in question) so that it can be readily located in the
records of the Copyright Office;
(iii) The request must contain a clear statement of the facts on
which it is based and provide a clear basis on which a refund may be
granted, in accordance with the following procedures:
(A) In the case of a request filed under paragraph (j)(1)(i) of this
section, where the information given in the Statement of Account is
incorrect or incomplete, the request must clearly identify the erroneous
or incomplete information and provide the correct or additional
information;
(B) In the case of a request filed under paragraph (j)(1)(ii) of
this section, where the royalty fee was miscalculated and the amount
deposited in the Copyright Office was either too high or too low, the
request must be accompanied by an affidavit under the official seal of
any officer authorized to administer oaths within the United
[[Page 371]]
States, or a statement in accordance with section 1746 of title 28 of
the United States Code, made and signed in accordance with paragraph
(e)(14) of this section. The affidavit or statement shall describe the
reasons why the royalty fee was improperly calculated and include a
detailed analysis of the proper royalty calculations;
(C) In the case of a request filed under paragraph (j)(1)(iii) of
this section, the request shall be identified as ``Transitional and
Supplemental Royalty Fee Payment'' and include a detailed analysis of
the proper royalty calculations;
(iv)(A) All requests filed under this paragraph (j) (except those
filed under subparagraph (1)(iii) of this paragraph must be accompanied
by a filing fee in the amount of $15 for each Statement of Account
involved. Payment of this fee may be in the form of a personal or
company check, or of a certified check, cashier's check or money order,
payable to: Register of Copyrights. No request will be processed until
the appropriate filing fees are received.
(B) All requests that a supplemental royalty fee payment be received
for deposit under this paragraph (j), must be accompanied by a
remittance in the full amount of such fee. Payment of the supplemental
royalty fee must be in the form of a certified check, cashier's check,
or money order, payable to: Register of Copyrights; or an electronic
payment. No such request will be processed until an acceptable
remittance in the full amount of the supplemental royalty fee has been
received.
(v) All requests submitted under this paragraph (j) must be signed
by the cable system owner named in the Statement of Account, or the duly
authorized agent of the owner, in accordance with paragraph (e)(14) of
this section.
(vi) A request for a refund is not necessary where the Licensing
Division, during its examination of a Statement of Account or related
document, discovers an error that has resulted in a royalty overpayment.
In this case, the Licensing Division will forward the royalty refund to
the cable system owner named in the Statement of Account without regard
to the time limitations provided for in paragraph (j)(3)(i) of this
section.
(4) Following final processing, all requests submitted under this
paragraph (j) will be filed with the original Statement of Account in
the records of the Copyright Office. Nothing contained in this paragraph
shall be considered to relieve cable systems from their full obligations
under title 17 of the United States Code, and the filing of a correction
or supplemental payment shall have only such effect as may be attributed
to it by a court of competent jurisdiction.
(k) Satellite carriers not eligible. Satellite carriers and
satellite resale carriers are not eligible for the cable compulsory
license based upon an interpretation of the whole of section 111 of
title 17 of the United States Code. Any such entity who paid copyright
royalties into the Copyright Office in an attempt to comply with 17
U.S.C. 111 may obtain a refund of such royalties by submitting a written
request to the Chief, Licensing Division, Copyright Office, Library of
Congress, Washington DC 20557 no later than March 1, 1995.
(17 U.S.C. 111, 702, 708)
[43 FR 27832, June 27, 1978]
Editorial Note: For Federal Register citations affecting
Sec. 201.17, see the List of CFR Sections Affected in the Finding Aids
section of this volume.