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Implementation of Section 1003(b) of the Department of Defense Appropriations Act, 2010

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Released: December 28, 2009

Federal Communications Commission

FCC 09-113

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Implementation of Section 1003(b) of the
)
Department of Defense Appropriations Act, 2010
)

ORDER

Adopted: December 28, 2009

Released: December 28, 2009

By the Commission:

I.

INTRODUCTION

1.
In this Order, we amend Sections 76.64(l) and 76.65(f) of the Commission’s rules in
accordance with Section 1003(b) of the Department of Defense Appropriations Act, 2010.1 Section
325(b)(3)(C)(ii) of the Communications Act of 1934, as amended (the “Act”), required the Commission
to adopt regulations that, until January 1, 2010, prohibit a television broadcast station that provides
retransmission consent from engaging in exclusive contracts for carriage or failing to negotiate in good
faith.2 Section 325(b)(3)(C)(iii) required the Commission to adopt regulations that, until January 1, 2010,
prohibit a multichannel video programming distributor from failing to negotiate in good faith for
retransmission consent.3 The Commission has previously adopted rules to implement these provisions,
including Sections 76.64(l) and 76.65(f) to reflect the sunset date of January 1, 2010.4
2.
In Section 1003(b) of the Department of Defense Appropriations Act, 2010, Congress
amended Sections 325(b)(3)(C)(ii) and (iii) to replace the previous sunset date of January 1, 2010 with a
new sunset date of March 1, 2010.5 Accordingly, we are amending our rules to reflect the new sunset
date, provided that if Congress further extends this date, the rules remain in effect until the statutory
authorization expires. We are amending these rules without providing prior public notice and comment
because prior notice and comment would be impracticable in this case.6 Section 1003(b) of the
Department of Defense Appropriations Act, 2010 was enacted on December 19, 2009, less than two
weeks before the sunset date of January 1, 2010. This provides the Commission with an insufficient
amount of time to publish a Notice of Proposed Rulemaking in the Federal Register, to allow time for
meaningful comment, and to consider those comments before taking the necessary actions prior to the


1 Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118, § 1003(b) (2009), was enacted on
December 19, 2009.
2 47 U.S.C. § 325(b)(3)(C)(ii).
3 47 U.S.C. § 325(b)(3)(C)(iii).
4 See 47 C.F.R. § 76.64(l) (“Exclusive retransmission consent agreements are prohibited. No television broadcast
station shall make or negotiate any agreement with one multichannel video programming distributor for carriage to
the exclusion of other multichannel video programming distributors. This paragraph shall terminate at midnight on
December 31, 2009.”); 47 C.F.R. § 76.65(f) (“Termination of rules. This section shall terminate at midnight on
December 31, 2009.”).
5 See Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118, § 1003(b).
6 See 5 U.S.C. § 553(b)(3)(B).

Federal Communications Commission

FCC 09-113

sunset date of January 1, 2010.7 Moreover, our action here is largely ministerial, because it simply
implements a new sunset date established by Congress.8 Accordingly, we find that this action falls within
the “good cause” exception to the notice and comment requirements of the Administrative Procedure Act
(“APA”).9 For similar reasons, we find good cause to make these amendments to our rules effective upon
publication in the Federal Register. Because the legislation establishing the new sunset date was enacted
less than two weeks prior to the previous sunset date of January 1, 2010, we are unable to provide for a
30-day period before the new sunset date in these rules takes effect.10

II.

PROCEDURAL MATTERS

3.
This document does not contain new or modified information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it
does not contain any new or modified information collection burden for small business concerns with
fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-
198, see 44 U.S.C. 3506(c)(4).

III.

ORDERING CLAUSES

4.
Accordingly,

IT IS ORDERED

that pursuant to the authority found in Section 325 of the
Communications Act of 1934, as amended, 47 U.S.C. § 325, and Section 1003(b) of the Department of
Defense Appropriations Act, 2010, Pub. L. No. 111-118, § 1003(b) (2009), Sections 76.64(l) and 76.65(f)

ARE HEREBY AMENDED

as set forth in Appendix A and

WILL BECOME EFFECTIVE

upon
publication of a notice in the Federal Register.
FEDERAL COMMUNICATONS COMMISSON



Marlene H. Dortch
Secretary


7 See Petry v. Block, 737 F.2d 1193, 1201 (D.C. Circ. 1984) (holding that the “extremely limited time given by
Congress” established “good cause” for not seeking prior notice and comment).
8 See 5 U.S.C. § 553(b)(3)(B). See, e.g., Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 1282,
1291 (DC Cir. 1982) (agency order, issued pursuant to congressional waiver of certain provisions of federal law that
would otherwise have governed construction and operation of Alaskan natural gas pipeline, was appropriately issued
without notice and comment as a nondiscretionary ministerial action); Implementation of Section 505 of the
Telecommunications Act of 1996 (Scrambling of Sexually Explicit Adult Video Service Programming
), 11 FCC Rcd
5386, 5387 (1996); Implementation of Sections 204(A) and 204(C) of the Telecommunications Act of 1996
(Broadcast License Renewal Procedures)
, 11 FCC Rcd 6363, 6364 (1996); Implementation of Sections 202(A) and
202(B)(1) of the Telecommunications Act of 1996 (Broadcast Radio Ownership)
, 11 FCC Rcd 12368, 12371 (1996);
Implementation of Sections 202(c)(1) and 202(e) of the Telecommunications Act of 1996 (National Broadcast
Television Ownership and Dual Network Operations)
, 11 FCC Rcd 12374, 12377 (1996).
9 Because we have found good cause for not seeking prior notice and comment, the Regulatory Flexibility Act and
the Congressional Review Act do not apply to our action here. See 5 U.S.C. § 603(a); 5 U.S.C. § 808.
10 See 5 U.S.C. § 553(d)(3) (“The required publication or service of a substantive rule shall be made not less than 30
days before its effective date, except ... as otherwise provided by the agency for good cause found and published
with the rule.”); see also 47 C.F.R. § 1.427(b).
2

Federal Communications Commission

FCC 09-113

APPENDIX

Revised Rules

Part 76 of Title 47 of the Code of Federal Regulations is amended as follows:
Part 76 — MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
1.
The authority citation for Part 76 continues to read as follows:
AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317,
325, 338, 339, 340, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552,
554, 556, 558, 560, 561, 571, 572 and 573.
2.
Amend section 76.64 to revise the last sentence of paragraph (l) to read as follows:
* * * * *
(l) * * * This paragraph shall terminate at midnight on February 28, 2010, provided that if Congress
further extends this date, the rules remain in effect until the statutory authorization expires.
* * * * *
3.
Amend section 76.65 to revise paragraph (f) to read as follows:

* * * * *
(f) Termination of rules. This section shall terminate at midnight on February 28, 2010, provided that if
Congress further extends this date, the rules remain in effect until the statutory authorization expires.
3

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