§ 73.658   Affiliation agreements and network program practices; territorial
exclusivity in non-network program arrangements.

   (a) Exclusive affiliation of station. No license shall be granted to a
   television broadcast station having any contract, arrangement, or
   understanding, express or implied, with a network organization under
   which the station is prevented or hindered from, or penalized for,
   broadcasting the programs of any other network organization. (The term
   “network organization” as used in this section includes national and
   regional network organizations. See ch. VII, J, of Report on Chain
   Broadcasting.)

   (b) Territorial exclusively. No license shall be granted to a
   television broadcast station having any contract, arrangement, or
   understanding, express or implied, with a network organization which
   prevents or hinders another broadcast station located in the same
   community from broadcasting the network's programs not taken by the
   former station, or which prevents or hinders another broadcast station
   located in a different community from broadcasting any program of the
   network organization. This section shall not be construed to prohibit
   any contract, arrangement, or understanding between a station and a
   network organization pursuant to which the station is granted the first
   call in its community upon the programs of the network organization. As
   employed in this paragraph, the term “community” is defined as the
   community specified in the instrument of authorization as the location
   of the station.

   (c) [Reserved]

   (d) Station commitment of broadcast time. No license shall be granted
   to a television broadcast station having any contract, arrangement, or
   understanding, express or implied, with any network organization, which
   provides for optioning of the station's time to the network
   organization, or which has the same restraining effect as time
   optioning. As used in this section, time optioning is any contract,
   arrangement, or understanding, express or implied, between a station
   and a network organization which prevents or hinders the station from
   scheduling programs before the network agrees to utilize the time
   during which such programs are scheduled, or which requires the station
   to clear time already scheduled when the network organization seeks to
   utilize the time.

   (e) Right to reject programs. No license shall be granted to a
   television broadcast station having any contract, arrangement, or
   understanding, express or implied, with a network organization which,
   with respect to programs offered or already contracted for pursuant to
   an affiliation contract, prevents or hinders the station from:

   (1) Rejecting or refusing network programs which the station reasonably
   believes to be unsatisfactory or unsuitable or contrary to the public
   interest, or

   (2) Substituting a program which, in the station's opinion, is of
   greater local or national importance.

   (f) [Reserved]

   (g) Dual network operation. A television broadcast station may
   affiliate with a person or entity that maintains two or more networks
   of television broadcast stations unless such dual or multiple networks
   are composed of two or more persons or entities that, on February 8,
   1996, were “networks” as defined in § 73.3613(a)(1) of the Commission's
   regulations (that is, ABC, CBS, Fox, and NBC).

   (h) Control by networks of station rates. No license shall be granted
   to a television broadcast station having any contract, arrangement, or
   understanding, express or implied, with a network organization under
   which the station is prevented or hindered from, or penalized for,
   fixing or altering its rates for the sale of broadcast time for other
   than the network's programs.

   (i) No license shall be granted to a television broadcast station which
   is represented for the sale of non-network time by a network
   organization or by an organization directly or indirectly controlled by
   or under common control with a network organization, if the station has
   any contract, arrangement or understanding, express or implied, which
   provides for the affiliation of the station with such network
   organization: Provided, however, That this rule shall not be applicable
   to stations licensed to a network organization or to a subsidiary of a
   network organization.

   (j)-(l) [Reserved]

   (m) Territorial exclusivity in non-network arrangements. (1) No
   television station shall enter into any contract, arrangement, or
   understanding, expressed or implied; with a non-network program
   producer, distributor, or supplier, or other person; which prevents or
   hinders another television station located in a community over 56.3
   kilometers (35 miles) away, as determined by the reference points
   contained in § 76.53 of this chapter, (if reference points for a
   community are not listed in § 76.53, the location of the main post
   office will be used) from broadcasting any program purchased by the
   former station from such non-network program producer, distributor,
   supplier, or other person, except that a television station may secure
   exclusivity against a television station licensed to another designated
   community in a hyphenated market specified in the market listing as
   contained in § 76.51 of this chapter for those 100 markets listed, and
   for markets not listed in § 76.51 of this chapter, the listing as
   contained in the Nielsen Media Research DMA Rankings for the most
   recent year at the time that the exclusivity contract, arrangement or
   understanding is complete under practices of the industry. As used in
   this paragraph, the term “community” is defined as the community
   specified in the instrument of authorization as the location of the
   station.

   (2) Notwithstanding paragraph (m)(1) of this section, a television
   station may enter into a contract, arrangement, or understanding with a
   producer, supplier, or distributor of a non-network program if that
   contract, arrangement, or understanding provides that the broadcast
   station has exclusive national rights such that no other television
   station in the United States may broadcast the program.

   Note 1: Contracts, arrangements, or understandings that are complete
   under the practices of the industry prior to August 7, 1973, will not
   be disturbed. Extensions or renewals of such agreements are not
   permitted because they would in effect be new agreements without
   competitive bidding. However, such agreements that were based on the
   broadcaster's advancing “seed money” for the production of a specific
   program or series that specify two time periods—a tryout period and
   period thereafter for general exhibition—may be extended or renewed as
   contemplated in the basic agreement.

   Note 2: It is intended that the top 100 major television markets listed
   in § 76.51 of this chapter shall be used for the purposes of this rule
   and that the listing of the top 100 television markets appearing in the
   ARB Television Market Analysis shall not be used. The reference in this
   rule to the listing of markets in the ARB Television Market Analysis
   refers to hyphenated markets below the top-100 markets contained in the
   ARB Television Market Analysis. If a community is listed in a
   hyphenated market in § 76.51 and is also listed in one of the markets in
   the ARB listing, the listing in § 76.51 shall govern.

   Note 3: The provisions of this paragraph apply only to U.S. commercial
   television broadcast stations in the 50 states, and not to stations in
   Puerto Rico or the Virgin Islands, foreign stations or noncommercial
   educational television or “public” television stations (either by way
   of restrictions on their exclusivity or on exclusivity against them).

   Note 4: New stations authorized in any community of a hyphenated market
   listed in § 76.51 of this chapter or in any community of a hyphenated
   market listed in the ARB Television Market Analysis (for markets below
   the top-100 markets) are subject to the same rules as previously
   existing stations therein. New stations authorized in other communities
   are considered stations in separate markets unless and until § 76.51 is
   amended by Commission action, or the ARB listing is changed.

   (Sec. 5, 48 Stat. 1068 (47 U.S.C. 155))

   [ 28 FR 13660 , Dec. 14, 1963]

   Editorial Note: For Federal Register citations affecting § 73.658, see
   the List of CFR Sections Affected, which appears in the Finding Aids
   section of the printed volume and at www.fdsys.gov.

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