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 98 STAT. 2764

Regulations.

Public information.

PUBLIC LAW 98-547—OCT. 25, 1984

"(D) the actions taken by such insurers to reduce such premiums, including changes in rate levels for automobile comprehensive coverages, due to a reduction in thefts of motor vehicles; "(E) the actions taken by such insurers to assist in deterring or reducing thefts of motor vehicles; and "(F) such other information as the Secretary may require to administer this title and to make the report and findings required by this title. The information on thefts and recoveries of such vehicles shall include an explanation about how such information is obtained by the insurer, the accuracy and timeliness of such information, and the use made of such information, including the extent to which such information is reported, including the frequency of such reporting, to national, public, and private entities, such as the Federal Bureau of Investigation and State and local police. "(3) For purposes of this section, the term 'insurer' includes any person which has a fleet of 20 or more motor vehicles (other than any governmental entity) which are used primarily for rental or lease and which are not covered by theft insurance policies issued by insurers of passenger motor vehicles. "(4) The Secretary shall exempt from the requirements of this section, for one or more years, any insurer if the Secretary determines that such insurer should be exempted because— "(A) the cost of preparing and furnishing reports and information is excessive in relation to the size of the business of the insurer, and "(B) such reports and information will not significantly contribute to carrying out the purposes of this title. "(5)(A) Subject to subparagraph (B), the Secretary shall, by rule, exempt from the requirements of this section small insurers if the Secretary finds that siich exemption will not significantly affect the validity or usefulness of the information collected and compiled under this section, nationally or State-by-State. "(B) The Secretary may not, under subparagraph (A), exempt any person who is considered an insurer under this section solely by reason of paragraph (3). "(C)(i) Subject to clause (ii), for purposes of this paragraph, the term 'small insurer' means any insurer whose premiums for motor vehicle insurance issued directly or through any affiliate, including any pooling arrangement established under State law or regulation for the issuance of motor vehicle insurance, account for less than one percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the United States. The regulations under this paragraph shall provide that eligibility as a small insurer shall be based on the most recent calendar year for which adequate data is available, and that, once attained, such eligibility shall continue without further demonstration of qualification for one or more years, as the Secretary considers appropriate. "(ii) For purposes of the reporting requirements under this section for an insurer's operations within any State, the term 'small insurer' shall not include any insurer whose premiums for motor vehicle insurance issued directly or through any affiliate, including any pooling arrangement described in clause (i), account for 10 percent or more of the total premiums for all forms of motor vehicle insurance issued by insurers within such State. "(b) The information obtained by the Secretary under this section shall be periodically compiled and (subject to section 552 of title 5,

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98 STAT. 2765

United States Code) published by the Secretary in a form that will be helpful to the public, including Federal, State, and local police, and Congress. "(c) The Secretary shall consult with such State and insurance regulatory agencies and other agencies and associations, both public and private, as the Secretary deems appropriate. "(d) If, in paying claims pursuant to adjustment or negotiations between the insurer and the insured for any stolen motor vehicle, any insurer reduces such payment by the amount of the value, salvage or otherwise, of any part subject to the standard which is recovered and such reduction is not made at the express election of the insured, the insurer shall promptly report such action in writing to the Secretary. "(e) The information required by this section shall be furnished in such form as the Secretary shall prescribe by regulation or otherwise. "(f) For purposes of this section, the term 'motor vehicle' includes trucks, multipurpose passenger vehicles, and motorcycles. "VOLUNTARY VEHICLE IDENTIFICATION STANDARDS

"SEC. 613. (a) The Secretary may, by rule, promulgate a vehicle theft prevention standard under which any person may elect to inscribe or affix an identifying number or symbol on major parts of any motor vehicle manufactured or owned by such person for purposes of section 511 of title 18, United States Code and related provisions. Such standard may include provisions for registration of such identification with the Secretary or any person designated by the Secretary. "(b) The standard under this section shall be practicable, and shall provide relevant objective criteria. "(c) Compliance with such standard shall be voluntary, and any failure to comply shall not be subject to penalty or enforcement under this title. "(d) Compliance with such standard shall not relieve any manufacturer of any requirement under the standard under section 602.

15 USC 2033.

" 3 - Y E A R A N D 5-YEAR STUDIES REGARDING MOTOR VEHICLE THEFT

"SEC. 614. (a)(1) Not later than 3 years after the date of the enactment of this title, the Secretary shall submit a report to the Congress which includes the information and legislative recommendations required under paragraphs (2) and (3). "(2) The report required by this subsection shall include— "(A) data on the number of trucks, multipurpose passenger vehicles, and motorcycles, stolen and recovered annually, compiled by model, make, and line for all such motor vehicles distributed for sale in interstate commerce; "(B) information on the extent to which trucks, multipurpose passenger vehicles, and motorcycles, stolen annually are dismantled to recover parts or are exported; "(C) a description of the market for such stolen parts; "(D) information concerning the premiums charged by insurers of comprehensive insurance coverage of trucks, multipurpose passenger vehicles, or motorcycles, including any increase in such premiums charged because any such motor vehicle is a likely candidate for theft; and

Report, 15 USC 2034.

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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 98 STAT. 2766

Report.

Post, pp. 2768, 2771.

PUBLIC LAW 98-547—OCT. 25, 1984

"(E) an assessment of whether the identification of parts of trucks, multipurpose passenger vehicles, and motorcycles is likely to have (i) a beneficial impact in decreasing the rate of theft of such vehicles; (ii) improve the recovery rate of such vehicles; (iii) decrease the trafficking in stolen parts of such vehicles; (iv) stem the export and import of such stolen vehicles or parts; or (v) benefits which exceed the cost of such identification. "(3) The report under this subsection shall recommend to Congress whether, and to what extent, the identification of trucks, multipurpose passenger vehicles, and motorcycles should be required by statute. "(b)(1) Not later than 5 years after the promulgation of the standard required by this title, the Secretary shall submit a report to the Congress which includes the information and legislative recommendations required under paragraphs (2) and (3). "(2) The report required by this subsection shall include— "(A) information about the methods and procedures used by public and private entities for collecting, compiling, and disseminating information concerning the theft and recovery of motor vehicles, including classes thereof, and about the reliability, accuracy, and timeliness of such information, and how such information can be improved; "(B) data on the number of motor vehicles stolen and recovered annually, compiled by the class of vehicle, model, make, and line for all such motor vehicles distributed for sale in interstate commerce; "(C) information on the extent to which motor vehicles stolen annually are dismantled to recover parts or are exported; "(D) a description of the market for such stolen parts; "(E) information concerning the costs to manufacturers, as well as to purchasers of passenger motor vehicles, in complying with the standard promulgated under this title, as well as the identification of the beneficial impacts of the standard and the monetary value of any such impacts, and the extent to which such monetary value is greater than the costs; "(F) information concerning the experience of Federal, State, and local officials in making arrests and successfully prosecuting persons for violations of the provisions of law set forth in titles II and III of the Motor Vehicle Theft Law Enforcement Act of 1984, in preventing or reducing the number, and rate of, thefts of motor vehicles that are dismantled for parts subject to this title, and in preventing or reducing the availability of used parts that are stolen from motor vehicles subject to this title; "(G) information concerning the premiums charged by insurers of comprehensive insurance coverage of motor vehicles subject to this title, including any increase in such premiums charged because a motor vehicle is a likely candidate for theft, and the extent to which such insurers have reduced for the benefit of consumers such premiums as a result of this title or have foregone premium increases as a result of this title; "(H) information concerning the adequacy and effectiveness of Federal and State laws aimed at preventing the distribution and sale of used parts that have been removed from stolen motor vehicles and the adequacy of systems available to enforcement personnel for tracing parts to determine if they have been stolen from a motor vehicle;

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 PUBLIC LAW 98-547—OCT. 25, 1984

98 STAT. 2767

"(I) an assessment of whether the identification of parts of other classes of motor vehicles is likely to have (i) a beneficial impact in decreasing the rate of theft of such vehicles; (ii) improve the recovery rate of such vehicles; (iii) decrease the trafficking in stolen parts of such vehicles; (iv) stem the export and import of such stolen vehicles, parts, or components; or (v) benefits which exceed the costs of such identification; and "(J) other pertinent and reliable information available to the Secretary concerning the impact, including the beneficial impact, of this title and titles II and III of the Motor Vehicle Theft Law Enforcement Act of 1984 on law enforcement, consumers, and manufacturers. "(3) The report submitted under this subsection to the Congress shall include recommendations for (A) continuing the standard established by this title without change, (B) modifying this title to cover more or fewer lines of passenger motor vehicles, (C) modifying this title to cover other classes of motor vehicles, or (D) terminating the standard for all future motor vehicles. The report may include, as appropriate, legislative and administrative recommendations. "(c)(1) The reports under subsections (a) and (b) shall each be based on (A) the information reported under this title by insurers of motor vehicles and manufacturers of such vehicles and major replacement parts, (B) information provided by the Federal Bureau of Investigation, (C) experience obtained in the implementation, administration, and enforcement of this title, (D) experience gained by the Government under titles II and III of the Motor Vehicle Theft Law Enforcement Act of 1984, and (E) any other reliable and relevant information available to the Secretary. "(2) In preparing each such report, the Secretary shall consult with the Attorney General of the United States and with State and local law enforcement officials, as appropriate. "(3) The report under subsection (b) shall (A) cover a period of at least four years subsequent to the promulgation of the standard required by this title, and (B) reflect any information, as appropriate, from the report under subsection (a) updated from the time of such report. "(4) At least 90 days before submitting each such report to Congress, the Secretary shall publish the proposed report for public review and for an opportunity for written comment of at least 45 days. The Secretary shall consider such comments in preparing the final report and shall include a summary of such comments with the final report.". (b) Section 2 of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 1901) is amended by inserting "and except as provided in section 601 of this Act" immediately after "title V". REPORT REGARDING THEFT PREVENTION SYSTEMS

SEC. 102. (a) The Secretary of Transportation, not later than one year after the date of the enactment of this Act, shall submit a report to the Congress regarding security devices and systems which are designed to deter individuals from entering a locked motor vehicle and starting the motor vehicle for the purpose of stealing the motor vehicle, (b) The report required in subsection (a) shall contain— ( D a determination by the Secretary of whether a Federal standard regarding security devices and systems can be devised

Post, pp. 2768, 2771.

Report.

Public availability.

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 98 STAT. 2768

PUBLIC LAW 98-547—OCT. 25, 1984

which does not result in the compromising of motor vehicle theft prevention devices and systems in the process of demonstrating compliance with such standard; (2) a determination by the Secretary of whether the purposes of theft prevention would be better served by such a standard or whether owners of motor vehicles used primarily in areas having high crime rates should be encouraged to equip their vehicles with security devices or systems; and (3) a description of the costs and effectiveness of such devices and systems. (c) The report required in subsection (a) also may include an examination and review of any matters relating to motor vehicle theft prevention which the Secretary of Transportation considers appropriate to examine and review. The Secretary shall prepare such report after consulting with the Attorney General of the United States. Such report shall include recommendations for such legislative or administrative action as the Secretary considers necessary or appropriate. TITLE II—ANTIFENCING MEASURES MOTOR VEHICLE IDENTIFICATION NUMBERS; FORFEITURES

SEC. 20 L (a) Chapter 25 of title 18, United States Code, is amended by adding at the end the following new sections: 18 USC 511.

15 USC 1381 ?iot6: note 15 USC 1901.

"§ 51L Altering or removing motor vehicle identification numbers "(a) Whoever knowingly removes, obliterates, tampers with, or alters an identification number for a motor vehicle, or motor vehicle part, shall be fined not more than $10,000 or imprisoned not more than five years, or both. "flaXD Subsection (a) of this section does not apply to a removal, obliteration, tampering, or alteration by a person specified in paragraph (2) of this subsection (unless such person knows that the vehicle or part involved is stolen). "(2) The persons referred to in paragraph (1) of this subsection are— "(A) a motor vehicle scrap processor or a motor vehicle demolisher who complies with applicable State law with respect to such vehicle or part; "(B) a person who repairs such vehicle or part, if the removal, obliteration, tampering, or alteration is reasonably necessary for the repair; and "(C) a person who restores or replaces an identification number for such vehicle or part in accordance with applicable State law. "(c) As used in this section, the term— "(1) 'identification number' means a number or S5mibol that is inscribed or affixed for purposes of identification under the National Traffic and Motor Vehicle Safety Act of 1966, or the Motor Vehicle Information and (Dost Savings Act; "^^^ 'motor vehicle' has the meaning given that term in section 2 of the Motor Vehicle Information and Ck>st Savings Act; "(3) 'motor vehicle demolisher' means a person, including any motor vehicle dismantler or motor vehicle recycler, who is engaged in the business of reducing motor vehicles or motor

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98 STAT. 2769

vehicle parts to metallic scrap that is unsuitable for use as either a motor vehicle or a motor vehicle part; "(4) 'motor vehicle scrap processor' means a person— "(A) who is engaged in the business of purchasing motor vehicles or motor vehicle parts for reduction to metallic scrap for recycling; "(B) who, from a fixed location, uses machinery to process metallic scrap into prepared grades; and "(C) whose principal product is metallic scrap for recycling; but such term does not include any activity of any such person relating to the recycling of a motor vehicle or a motor vehicle part as a used motor vehicle or a used motor vehicle part. "§ 512. Forfeiture of certain motor vehicles and motor vehicle parts "(a) If an identification number for a motor vehicle or motor vehicle part is removed, obliterated, tampered with, or altered, such vehicle or part shall be subject to seizure and forfeiture to the United States unless— "(1) in the case of a motor vehicle part, such part is attached to a motor vehicle and the owner of such motor vehicle does not know that the identification number has been removed, obliterated, tampered with, or altered; "(2) such motor vehicle or part has a replacement identification number that— "(A) is authorized by the Secretary of Transportation under the National Traffic and Motor Vehicle Safety Act of 1966; or "(B) conforms to applicable State law; "(3) such removal, obliteratiop, tampering, or alteration is caused by collision or fire or is carried out as described in section 511(b) of this title; or "(4) such motor vehicle or part is in the possession or control of a motor vehicle scrap processor who does not know that such identification number was removed, obliterated, tampered with, or altered in any manner other than by collision or fire or as described in section 511(b) of this title. "(b) All provisions of law relating to— "(1) the seizure and condemnation of vessels, vehicles, merchandise, and baggage for violation of customs laws, and procedures for summary and judicial forfeiture applicable to such violations; "(2) the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from such disposition; "(3) the remission or mitigation of such forfeiture; and "(4) the compromise of claims and the award of compensation to informers with respect to such forfeiture; shall apply to seizures and forfeitures under this section, to the extent that such provisions are not inconsistent with this section. The duties of the collector of customs or any other person with respect to seizure and forfeiture under such provisions shall be performed under this section by such persons as may be designated by the Attorney General. "(c) As used in this section, the terms 'identification number', 'motor vehicle', and 'motor vehicle scrap processor' have the meanings given those terms in section 511 of this title.".

18 USC 512.

15 USC 1381 note.

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 98 STAT. 2770

PUBLIC LAW 98-547—OCT. 25, 1984

(b) The table of sections for chapter 25 of title 18, United States Code, is amended by adding at the end the following new items: "511. Altering or removing motor vehicle identification numbers. "512. Forfeiture of certain motor vehicles and motor vehicle parts.". DEFINITION OF SECURITIES

SEC. 202. Section 2311 of title 18, United States Code, is amended in the fifth definition by inserting after "voting-trust certificate;" the following: "valid or blank motor vehicle title;". SALE OR RECEIPT OF STOLEN MOTOR VEHICLES

SEC. 203. Section 2313 of title 18, United States Code, is amended— (1) by inserting "possesses," after "receives,"; and (2) by striking out "moving as, or which is a part of, or which constitutes interstate or foreign commerce," and inserting in lieu thereof "which has crossed a State or United States boundary after being stolen,". TRAFFICKING IN CERTAIN MOTOR VEHICLES OR MOTOR VEHICLE PARTS

SEC. 204. (a) Chapter 113 of title 18, United States Code, is amended by adding at the end the following new section: 18 USC 2320.

"§2320. Trafficking in certain motor vehicles or motor vehicle parts "(a) Whoever buys, receives, possesses, or obtains control of, with intent to sell or otherwise dispose of, a motor vehicle or motor vehicle part, knowing that an identification number for such motor vehicle or part has been removed, obliterated, tampered with, or altered, shall be fined not more than $20,000 or imprisoned not more than ten years, or both. "(b) Subsection (a) does not apply if the removal, obliteration, teunpering, or alteration— "(1) is caused by collision orfire;or "(2) is not a violation of section 511 of this title. "(c) As used in this section, the terms 'identification number' and 'motor vehicle' have the meaning given those terms in section 511 of

Ante, p. 2768.

this title.".

(b) The table of sections for chapter 113 of title 18, United States Code, is amended by adding at the end the following new item: "2320. Trafficking in certain motor vehicles or motor vehicle parts.". DEFINITION OF RACKETEERING ACTIVITY

SEC. 205. Section 1961(1) of title 18, United States Code, is amended— (1) by inserting "sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles)," after "section 1955 (relating to the prohibition of illegal gambling businesses),"; and (2) by inserting "section 2320 (relating to trafficking in certain motor vehicles or motor vehicle parts)," after "sections 2314 and 2315 (relating to interstate transportation of stolen property),".

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 PUBLIC LAW 98-547—OCT. 25, 1984

98 STAT. 2771

TITLE III—IMPORTATION AND EXPORTATION MEASURES AMENDMENTS TO TITLE 18, UNITED STATES CODE

SEC. 301. (a) Chapter 27 of title 18, United States Code, is amended by adding at the end the following new section: "§ 553. Importation or exportation of stolen motor vehicles, offhighway mobile equipment, vessels, or aircraft "(a) Whoever knowingly imports, exports, or attempts to import or export— "(1) any motor vehicle, off-highway mobile equipment, vessel, aircraft, or part of any motor vehicle, off-highway mobile equipment, vessel, or aircraft, knowing the same to have been stolen; or "(2) any motor vehicle or off-highway mobile equipment or part of any motor vehicle or off-highway mobile equipment, knowing that the identification number of such motor vehicle, equipment, or part has been removed, obliterated, tampered with, or altered; shall be fined not more than $15,000 or imprisoned not more than five years, or both. "(b) Subsection (a)(2) shall not apply if the removal, obliteration, tampering, or alteration— "(1) is caused by collision or fire; or "(2) is not a violation of section 511 of this title. "(c) As used in this section, the term— "(1) 'motor vehicle' has the meaning given that term in section 2 of the Motor Vehicle Information and C!ost Savings Act; "(2) 'off-highway mobile equipment' means any self-propelled agricultural equipment, self-propelled construction equipment, and self-propelled special use equipment, used or designed for running on land but not on rail or highway; "(3) 'vessel' has the meaning given that term in section 401 of the Tariff Act of 1930 (19 U.S.C. 1401); "(4) 'aircraft' has the meaning given that term in section 101 of the Federal Aviation Act of 1958 (49 U.S.C. App. 1301); and "(5) 'identification number'— "(A) in the case of a motor vehicle, has the meaning given that term in section 511 of this title; and "(B) in the case of any other vehicle or equipment covered by this section, means a number or symbol assigned to the vehicle or equipment, or part thereof, by the manufacturer primarily for the purpose of identifying such vehicle, equipment, or part.", (b) The table of sections for chapter 27 of title 18, United States Code, is amended by adding at the end the following new item: "553. Importation or exportation of stolen motor vehicles, off-highway mobile equipment, vessels, or aircraft.". AMENDMENT TO TARIFF ACT OF 1930

SEC. 302. Part V of title IV of the Tariff Act of 1930 (19 U.S.C. 1581 et seq.) is amended by adding at the end thereof the following new section:

18 USC 553.

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 98 STAT. 2772 19 USC 1627.

Regulations.

PUBLIC LAW 98-547—OCT. 25, 1984

"SEC. 627. UNLAWFUL IMPORTATION OR EXPORTATION OF CERTAIN VEHICLES AND EQUIPMENT; INSPECTIONS.

"(a)(1) Whoever knowingly imports, exports, or attempts to import or export— "(A) any motor vehicle, off-highway mobile equipment, vessel, aircraft, or part of any motor vehicle, off-highway mobile equipment, vessel or aircraft, knowing the same to have been stolen; or "(B) any motor vehicle or off-highway mobile equipment, or part of any motor vehicle or off-highway mobile equipment, knowing that the identification number has been removed, obliterated, tampered with, or altered; shall be subject to a civil penalty in an amount determined by the Secretary, not to exceed $10,000 for each violation. "(2) Any violation of this subsection shall make such motor vehicle, off-highway mobile equipment, vessel, aircraft, or part thereof subject to seizure and forfeiture under this Act. "(3) The provisions of paragraph (1)(B) shall not apply in the case of any vehicle, equipment, or part, if the removal, obliteration, tampering with, or alteration of the identification number for such vehicle, equipment, or part— "(A) was caused by any collision or fire which results in damage to that portion of such vehicle, equipment, or part on which such identification number is displayed; or "(B) was carried out in accordance with the provisions of section 511(b) of title 18, United States Code. "(b) The Secretary shall prescribe regulations under which a person attempting to export any used motor vehicle or any used offhighway mobile equipment shall present to the appropriate customs officer both the vehicle or equipment, as the case may be, and a document describing such vehicle or equipment, as the case may be, which includes the vehicle or equipment identification number, as the case may be, before lading if the vehicle or equipment, as the case may be, is to be transported by vessel or aircraft, or before export if the vehicle or equipment, as the case may be, is to be transported by rail, highway, or under its own power. Failure to comply with such regulations of the Secretary shall subject such person to a civil penalty of not more than $500 for each violation. "(c) For purposes of this section— "(1) the term 'motor vehicle' includes any automobile, truck, bus, motorcycle, or motor home, but such term does not include any off-highway mobile equipment; "(2) the term 'off-highway mobile equipment' means selfpropelled agricultural equipment, self-propelled construction equipment, and self-propelled special use equipment, used or designed for running on land but not on rail or highway; "(3) the term 'aircraft' has the meaning given it in section 101(5) of the Federal Aviation Act of 1958 (49 U.S.C. 1301(5)); "(4) the term 'used' refers to any motor vehicle or off-highway mobile equipment the equitable or legal title to which has been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser; "(5) the term 'ultimate purchaser' means the first person, other than a dealer purchasing in his capacity as a dealer, who in good faith purchases a motor vehicle or off-highway mobile equipment for purposes other than resale; and

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 PUBLIC LAW 98-547—OCT. 25, 1984

98 STAT. 2773

"(6) the term 'identification number' has the meaning given such term in section 553(b)(5) of title 18, United States Code. "(d) Customs officers may cooperate and exchange information concerning motor vehicles, off-highway mobile equipment, vessels, or aircraft, either before exportation or after exportation or importation, with such Federal, State, local, and foreign law enforcement or governmental authorities, and with such organizations engaged in theft prevention activities, as may be designated by the Secretary.". Approved October 25, 1984.

LEGISLATIVE HISTORY—H.R. 6257 (S. 1400): HOUSE REPORT No. 98-1087, Pt. 1 (Comm. on Energy and Commerce). SENATE REPORT No. 98-478 accompanying S. 1400 (Comm. on Commerce, Science, and Transportation). CONGRESSIONAL RECORD, Vol. 130 (1984): Oct. 1, considered and passed House. Oct. 4, considered and passed Senate.

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 98 STAT. 2774

PUBLIC LAW 98-548—OCT. 26, 1984

Public Law 98-548 98th Congress An Act Oct. 26, 1984 [H.R. 5271]

To extend the Wetlands Loan Act.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, TITLE I

16 USC 7i5k-3. 16 USC 7i5k-5.

That the first section of the Act entitled "An Act to promote the conservation of migratory waterfowl by the acquisition of wetlands and other essential waterfowl habitat, and for other purposes", approved October 4, 1961, is amended by striking out "September 30, 1984," and inserting in lieu thereof "September 30, 1986,'\ SEC. 102, Section 3 of such Act of October 4, 1961, is amended by striking out "October 1, 1984," each place it appears therein and inserting in lieu thereof "October 1, 1986,". TITLE II—TO ESTABLISH THE CONNECTICUT COASTAL NATIONAL WILDLIFE REFUGE FINDINGS AND PURPOSES

16 USC 668dd note.

SEC. 201. (a) FINDINGS.—The Congress finds that— (1) Chimon Island, off the coast of Norwalk, is the most important heron rookery in Connecticut and contains one of the three largest wading bird colonies in the Northeast United States; (2) Milford Point, a narrow ten-acre tombolo, is one of the few remaining nesting sites in Connecticut for the piping plover; (3) Falkner's Island supports the only significant breeding population of the roseate tern in Connecticut and the only major population of the common tern; and (4) Sheffield Island is an excellent potential nesting habitat for heron. (b) PURPOSES.—The purposes for which the Connecticut Coastal National Wildlife Refuge is established are— (1) to enhance the populations of herons, egrets, terns, and other shore and wading birds within the refuge; (2) to encourage natural diversity of fish and wildlife species within the refuge; (3) to provide for the conservation and management of all fish and wildlife, within the refuge; (4) to fulfill the international treaty obligations of the United States respecting fish and wildlife; and (5) to provide opportunities for scientific research, environmental education, and fish and wildlife-oriented recreation. DEFINITIONS

SEC. 202. As used in sections 201 through 205 of this Act—

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98 STAT. 2775

(1) The term "refuge" means the Connecticut Coastal National Wildlife Refuge. (2) The term "Secretary" means the Secretary of the Interior. (3) The term "selection area" means the lands and waters of Chimon Island, Milford Point, Falkner's Island, and Sheffield Island in the State of Connecticut. ESTABLISHMENT OF REFUGE

SEC. 203. (a) SELECTION.—(1) Within ninety days after the effective date of this Act, the Secretary'shall— (A) designate approximately one hundred and forty-five acres of land and waters within the selection area as land which the Secretary considers appropriate for the refuge; (B) prepare a detailed map depicting the boundaries of the land designated under subparagraph (A), which map shall be on file and available for public inspection at offices of the United States Fish and Wildlife Service, and publish notice in the Federal Register of such availability. (2) The Secretary may make such minor revisions in the boundaries designated under paragraph (I)(B) of this subsection as may be appropriate to carry out the purpose of this Act or to facilitate the acquisition of property within the refuge. (b) ACQUISITION.—(1) Except as provided in paragraph (2), the Secretary shall acquire (by donation, purchase with donated or appropriated funds, or exchange) lands, waters, or interests therein within the boundaries designated under subsection (a)(l)(B). (2) The Secretary of the department in which the Coast Guard is operating shall transfer jurisdiction over Falkner's Island, Connecticut, to the Department of the Interior; except that the Coast Guard shall remain responsible for the operation and maintenance of the lighthouse on the island. (c) ESTABLISHMENT.—The Secretary shall establish the national wildlife refuge, by publication of a notice to that effect in the Federal Roister, whenever sufficient property has been acquired under this section to constitute an area that can be effectively managed as a national wildlife refuge. ADMINISTRATION

SEC. 204. The Secretary shall administer all lands, waters, and interests therein, acquired under section 203 of this Act in accordance with the provisions of the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee). The Secretary may utilize such additional statutory authority as may be available to him for the conservation and development of wildlife and natural resources, the development of outdoor recreation opportunities, and interpretive education as he deems appropriate to carry out the purposes of the refuge. AUTHORIZATION OF APPROPRIATIONS

SEC. 205. There is authorized to be appropriated to the Department of the Interior $2,500,000 from funds not otherwise appropriated from the Land and Water Conservation Fund for the acquisition of lands for the refuge, which sums shall remain available until expended.

Public availability. Federal Register, publication.

Federal Register, publication.

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Page:United States Statutes at Large Volume 98 Part 3.djvu/404

 98 STAT. 2776

PUBLIC LAW 98-548—OCT. 26, 1984 TITLE III—TO ESTABLISH THE ATCHAFALAYA NATIONAL WILDLIFE REFUGE DECLARATION OF FINDINGS AND PURPOSES

16 USC 668dd note.

SEC. 301. (a) FINDINGS.—The Congress finds that— (1) thousands of acres of bottomland hardwoods are being cleared each year in the Mississippi River Delta; (2) these forested wetlands represent one of the most valuable and productive wildlife habitat types in the United States and have extremely high recreational value for hunters, fishermen, trappers, birdwatchers, nature photographers, and others, and (3) the Atchafalaya area is a bottomland hardwood swamp which provides habitat for a diversity of wildlife, including herons, egrets, and other wading birds; mallards, wood ducks, and countless waterfowl; black bears, deer, bobcat, muskrat, and other mammals; a large population of alligators; and the Louisiana crawfish, as well as bass, catfish, and other fish. (b) PURPOSES.—The purposes for which the Atchafalaya National Wildlife Refuge is established are— (1) to provide for the conservation and management of all fish and wildlife within the refuge; (2) to fulfill the international treaty obligations of the United States with respect to fish and wildlife; and (3) to provide opportunities for scientific research, environmental education, and fish and wildlife-oriented recreation, including hunting, fishing and trapping, birdwatching, nature photography, and others. DEFINITIONS

SEC. 302. As used in sections 301 through 305 of this Act— (1) The term "Refuge" means Atchafalaya National Wildlife Refuge. (2) The term "Secretary" means the Secretary of the Interior. (3) The term "Selection area" means those lands and waters that are depicted on the map dated September 21, 1984, on file with the United States Fish and Wildlife Service which are not owned by the State of Louisiana and which are available from willing sellers. ESTABLISHMENT OF REFUGE

SEC. 303. (a)(1) SELECTION.—Within one hundred and eighty days after the effective date of this Act, the Secretary shall— (A) designate with the concurrence of the State of Louisiana land and waters within the selection area as land which the Secretary and the State of Louisiana consider appropriate for the refuge; (B) prepare a detailed map with the concurrence of the State of Louisiana, depicting the boundaries of the land designated under subparagraph (A), which map shall be on file and available for public inspection at offices of the United States Fish, and Wildlife Service, and publish notice in the Federal Register of such availability. (2) The Secretary may make such minor revisions in the boundaries designated under paragraph (I)(B) of this subsection as may be

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98 STAT. 2777

appropriate to carry out the purpose of this Act or to facilitate the acquisition of property within the refuge. (b) ACQUISITION.—The Secretary shall acquire with funds provided under Public Law 98-396, the lands, waters, or interests therein within the boundaries designated under subsection (a)(1)(B). The Secretary is authorized to include in any transfer of property to the United States, pursuant to this Act, language requiring the United States, in the event that such property is no longer required for fish and wildlife conservation and prior to any subsequent sale, exchange, other transfer of the property acquired, to first offer such property to the vendors, their heirs, successors or assigns, at the same price then being offered by any third party, which price shall in no event be less than the current fair market value. (c) ESTABLISHMENT.—The Secretary shall establish the National Wildlife Refuge, by publication of a notice to that effect in the Federal Register, whenever sufficient property has been acquired under this section to constitute an area that can be effectively managed as a national wildlife refuge. ADMINISTRATION

SEC. 304. The Secretary shall administer all lands, waters, and interests therein, acquired under section 303 of this Act in accordance with the provisions of the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee). The Secretary may utilize such additional statutory authority as may be available to him for the conservation and development of wildlife and natural resources, the development of outdoor recreation opportunities, and interpretive education as he deems appropriate to carry out the purposes of the refuge: Provided, however, That the Secretary shall enter into a cooperative agreement with the State of Louisiana to provide for management of the refuge by the State in a manner that is consistent with the responsibilities of the Secretary as the primary Administrator of the refuge and the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee).

Public lands. Ante, p. 1369.

Federal Register, publication.

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PUBLIC LAW 98-548—OCT. 26, 1984

SEC. 305. The refuge shall be treated as a fee area for purposes of applying section 401 of the Act commonly referred to as the Refuge Revenue Sharing Act (16 U.S.C. 715s). EFFECTIVE DATE

Effective date.

SEC. 306. This Act shall take effect October 1, 1984, or on the date of its enactment, whichever date is later. Approved October 26, 1984.

LEGISLATIVE HISTORY—H.R. 5271: HOUSE REPORT No. 98-705 (Comm. on Merchant Marine and Fisheries). CONGRESSIONAL RECORD, Vol. 130 (1984): Sept. 24, considered and passed House. Oct. 3, considered and passed Senate, amended. Oct. 4, House concurred in Senate amendments.

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Page:United States Statutes at Large Volume 98 Part 3.djvu/407

 PUBLIC LAW 98-549—OCT. 30, 1984

98 STAT. 2779

Public Law 98-549 98th Congress An Act To amend the Communications Act of 1934 to provide a national policy regarding cable television.

Oct. 30, 1984 [g ggj

Be it enacted by the Senate and House of Representatives of the Cable United States of America in Congress assembled, Communications -^

Policy Act of 1984.

SHORT TITLE; T A B L E OF C O N T E N T S

1. (a) This Act may be cited as the "Cable Communica- 47 USC 609 note. tions PoUcy Act of 1984". (b) The table of contents for this Act is as follows: SECTION

Sec. 1. Short title; table of contents. Sec. 2. Amendment of Communications Act of 1934. "TITLE VI—CABLE COMMUNICATIONS "PART I—GENERAL PROVISIONS

"Sec. 601. Purposes. "Sec. 602. Definitions. "PART II—USE OF CABLE CHANNELS AND OWNERSHIP RESTRICTIONS

"Sec. 611. Cable channels for public, educational, or governmental use. "Sec. 612. Cable channels for commercial use. "Sec. 613. Ownership restrictions. "PART III—FRANCHISING AND REGULATION

"Sec. "Sec. "Sec. "Sec. "Sec. "Sec. "Sec.

621. 622. 623. 624. 625. 626. 627.

General franchise requirements. Franchise fees. Regulation of rates. Regulation of services, facilities, and equipment. Modification of franchise obligations. Renewal. Conditions of sale. "PART IV—MISCELLANEOUS PROVISIONS

Sec. Sec. Sec. Sec. Sec. Sec. Sec.

"Sec. 631. Protection of subscriber privacy. "Sec. 632. Consumer protection. "Sec. 633. Unauthorized reception of cable service. "Sec. 634. Equal employment opportunity. "Sec. 635. Judicial proceedings. "Sec. 636. Coordination of Federal, State, and local authority. "Sec. 637. Existing franchises. "Sec. 638. Criminal and civil liability. "Sec. 639. Obscene programming.". 3. Jurisdiction. 4. Pole attachments. 5. Unauthorized reception of certain communications. 6. Technical and conforming amendments. 7. Support of activities of the United States Telecommunications Training Institute. 8. Telecommunications Policy Study Commission. 9. Effective date.

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PUBLIC LAW 98-549—OCT. 30, 1984 AMENDMENT OF COMMUNICATIONS ACT OF 1934

SEC. 2. The Communications Act of 1934 is amended by inserting after title V the following new title: "TITLE VI—CABLE COMMUNICATIONS "PART I—GENERAL PROVISIONS "PURPOSES

47 USC 521.

"SEC. 601. The purposes of this title are to— "(1) establish a national policy concerning cable communications; "(2) establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community; "(3) establish guidelines for the exercise of Federal, State, and local authority with respect to the regulation of cable systems; "(4) assure that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public; "(5) establish an orderly process for franchise renewal which protects cable operators against unfair denials of renewal where the operator's past performance and proposal for future performance meet the standards established by this title; and "(6) promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems. "DEFINITIONS

47 USC 522.

"SEC. 602. For purposes of this title— "(1) the term 'affiliate', when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person; "(2) the term 'basic cable service' means any service tier which includes the retransmission of local television broadcast signals; "(3) the term 'cable channel' or 'channel' means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation); "(4) the term 'cable operator' means any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system; "(5) the term 'cable service' means— "(A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and "(B) subscriber interaction, if any, which is required for the selection of such video programming or other programming service;

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Page:United States Statutes at Large Volume 98 Part 3.djvu/409

 PUBLIC LAW 98-549—OCT. 30, 1984 "(6) the term 'cable system' means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves only subscribers in 1 or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of this Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers; or (D) any facilities of any electric utility used solely for operating its electric utility systems; "(7) the term 'Federal agency' means any agency of the United States, including the Commission; "(8) the term 'franchise' means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to section 626), issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system; "(9) the term 'franchising authority' means any governmental entity empowered by Federal, State, or local law to grant a franchise; "(10) the term 'grade B contour' means the field strength of a television broadcast station computed in accordance with regulations promulgated by the Commission; "(11) the term 'other programming service' means information that a cable operator makes available to all subscribers generally; "(12) the term 'person' means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity; "(13) the term 'public, educational, or governmental access facilities' means— "(A) channel capacity designated for public, educational, or governmental use; and "(B) facilities and equipment for the use of such channel capacity; "(14) the term 'service tier' means a category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator; "(15) the term 'State' means any State, or political subdivision, or agency thereof; and "(16) the term 'video programming' means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

98 STAT. 2781

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 98 STAT. 2782

PUBLIC LAW 98-549—OCT. 30, 1984 "PART II—USE OF CABLE CHANNELS AND CABLE OWNERSHIP RESTRICTIONS "CABLE CHANNELS FOR PUBLIC, EDUCATIONAL, OR GOVERNMENTAL USE

47 USC 531.

"SEC. 611, (a) A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use only to the extent provided in this section. "(b) A franchising authority may in its request for proposals require as part of a franchise, and may require as part of a cable operator's proposal for a franchise renewal, subject to section 626, that channel capacity be designated for public, educational, or governmental use, and channel capacity on institutional networks be designated for educational or governmental use, and may require rules and procedures for the use of the channel capacity designated pursuant to this section. "(c) A franchising authority may enforce any requirement in any franchise regarding the providing or use of such channel capacity. Such enforcement authority includes the authority to enforce any provisions of the franchise for services, facilities, or equipment proposed by the cable operator which relate to public, educational, or governmental use of channel capacity, whether or not required by the franchising authority pursuant to subsection (b). "(d) In the case of any franchise under which channel capacity is designated under subsection (b), the franchising authority shall prescribe— "(1) rules and procedures under which the cable operator is permitted to use such channel capacity for the provision of other services if such channel capacity is not being used for the purposes designated, and "(2) rules and procedures under which such permitted use shall cease. "(e) Subject to section 624(d), a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section. "(f) For purposes of this section, the term 'institutional network' means a communication network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers. "CABLE CHANNELS FOR COMMERCIAL USE

47 USC 532.

"SEC. 612. (a) The purpose of this section is to assure that the widest possible diversity of information sources are made available to the public from cable systems in a manner consistent with growth and development of cable systems. "(b)(1) A cable operator shall designate channel capacity for commercial use by persons unaffiliated with the operator in accordance with the following requirements: "(A) An operator of any cable system with 36 or more (but not more than 54) activated channels shall designate 10 percent of such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation. "(B) An operator of any cable system with 55 or more (but not more than 100) activated channels shall designate 15 percent of

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such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation. "(C) An operator of any cable system with more than 100 activated channels shall designate 15 percent of all such channels. "(D) An operator of any cable system with fewer than 36 activated channels shall not be required to designate channel capacity for commercial use by persons unaffiliated with the operator, unless the cable system is required to provide such channel capacity under the terms of a franchise in effect on the date of the enactment of this title. "(E) An operator of any cable system in operation on the date of the enactment of this title shall not be required to remove any service actually being provided on July 1, 1984, in order to comply with this section, but shall make channel capacity available for commercial use as such capacity becomes available until such time as the cable operator is in full compliance with this section. "(2) Any Federal agency. State, or franchising authority may not require any cable system to designate channel capacity for commercial use by unaffiliated persons in excess of the capacity specified in paragraph (1), except as otherwise provided in this section. "(3) A cable operator may not be required, as part of a request for proposals or as part of a proposal for renewal, subject to section 626, to designate channel capacity for any use (other than commercial use by unaffiliated persons under this section) except as provided in sections 611 and 637, but a cable operator may offer in a franchise, or proposal for renewal thereof, to provide, consistent with applicable law, such capacity for other than commercial use by such persons. "(4) A cable operator may use any unused channel capacity designated pursuant to this section until the use of such channel capacity is obtained, pursuant to a written agreement, by a person unaffiliated with the operator. "(5) For the purposes of this section— "(A) the term 'activated channels' means those channels engineered at the headend of the cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use; and "(B) the term 'commercial use' means the provision of video programming, whether or not for profit. "(6) Any channel capacity which has been designated for public, educational, or governmental use may not be considered as designated under this section for commercial use for purpose of this section. "(c)(1) If a person unaffiliated with the cable operator seeks to use channel capacity designated pursuant to subsection (b) for commercial use, the cable operator shall establish, consistent with the purpose of this section, the price, terms, and conditions of such use which are at least sufficient to assure that such use will not adversely affect the operation, financial condition, or market development of the cable system. "(2) A cable operator shall not exercise any editorial control over any video programming provided pursuant to this section, or in any other way consider the content of such programming, except that an

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 98 STAT. 2784

Courts, U.S.

PUBLIC LAW 98-549—OCT. 30, 1984

operator may consider such content to the minimum extent necessary to establish a reasonable price for the commercial use of designated channel capacity by an unaffiliated person. "(3) Any cable system channel designated in accordance with this section shall not be used to provide a cable service that is being provided over such system on the date of the enactment of this title, if the provision of such programming is intended to avoid the purpose of this section. "(d) Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available for use pursuant to this section may bring an action in the district court of the United States for the judicial district in which the cable system is located to compel that such capacity be made available. If the court finds that the channel capacity sought by such person has not been made available in accordance with this section, or finds that the price, terms, or conditions established by the cable operator are unreasonable, the court may order such system to make available to such person the channel capacity sought, and further determine the appropriate price, terms, or conditions for such use consistent with subsection (c), and may award actual damages if it deems such relief appropriate. In any such action, the court shall not consider any price, term, or condition established between an operator and an affiliate for comparable services. "(e)(1) Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available pursuant to this section may petition the Commission for relief under this subsection upon a showing of prior adjudicated violations of this section. Records of previous adjudications resulting in a court determination that the operator has violated this section shall be considered as sufficient for the showing necessary under this subsection. If the Commission finds that the channel capacity sought by such person has not been made available in accordance with this section, or that the price, terms, or conditions established by such system are unreasonable under subsection (c), the Commission shall, by rule or order, require such operator to make available such channel capacity under price, terms, and conditions consistent with subsection (c). "(2) In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations by an operator, the Commission may also establish any further rule or order necessary to assure that the operator provides the diversity of information sources required by this section. "(3) In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations by any person who is an operator of more than one cable system, the Commission may also establish any further rule or order necessary to assure that such person provides the diversity of information sources required by this section. "(f) In any action brought under this section in any Federal district court or before the Commission, there shall be a presumption that the price, terms, and conditions for use of channel capacity designated pursuant to subsection (b) are reasonable and in good faith unless shown by clear and convincing evidence to the contrary. "(g) Notwithstanding sections 621(c) and 623(a), at such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules

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98 STAT. 2785

necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under this title. "(h) Any cable service offered pursuant to this section shall not be provided, or shall be provided subject to conditions, if such cable service in the judgment of the franchising authority is obscene, or is in conflict with community standards in that it is lewd, lascivious, filthy, or indecent or is otherwise unprotected by the Constitution of the United States. "OWNERSHIP RESTRICTIONS

"SEC. 613. (a) It shall be unlawful for any person to be a cable 47 USC 533. operator if such person, directly or through 1 or more affiliates, owns or controls, the licensee of a television broadcast station and the predicted grade B contour of such station covers any portion of the community served by such operator's cable system. "(b)(1) It shall be unlawful for any common carrier, subject in whole or in part to title II of this Act, to provide video programming 47 USC 201. directly to subscribers in its telephone service area, either directly or indirectly through an affiliate owned by, operated by, controlled by, or under common control with the common carrier. "(2) It shall be unlawful for any common carrier, subject in whole or in part to title II of this Act, to provide channels of communications or pole line conduit space, or other rental arrangements, to any entity which is directly or indirectly owned by, operated by, controlled by, or under common control with such common carrier, if such facilities or arrangements are to be used for, or in connection with, the provision of video programming directly to subscribers in the telephone service area of the common carrier. "(3) This subsection shall not apply to any common carrier to the extent such carrier provides telephone exchange service in any rural area (as defined by the Commission). "(4) In those areas where the provision of video programming directly to subscribers through a cable system demonstrably could not exist except through a cable system owned by, operated by, controlled by, or affiliated with the common carrier involved, or upon other showing of good cause, the Commission may, on petition for waiver, waive the applicability of paragraphs (1) and (2) of this subsection. Any such waiver shall be made in accordance with section 63.56 of title 47, Code of Federal Regulations (as in effect September 20, 1984) and shall be granted by the Commission upon a finding that the issuance of such waiver is justified by the particular circumstances demonstrated by the petitioner, taking into account the policy of this subsection. "(c) The Commission may prescribe rules with respect to the ownership or control of cable systems by persons who own or control other media of mass communications which serve the same community served by a cable system. ' (d) Any State or franchising authority may not prohibit the ownership or control of a cable system by any person because of such person's ownership or control of any media of mass communications or other media interests. "(e)(1) Subject to paragraph (2), a State or franchising authority may hold any ownership interest in any cable system. "(2) Any State or franchising authority shall not exercise any editorial control regarding the content of any cable service on a

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 98 STAT. 2786

^

47 USC 309.

PUBLIC LAW 98-549—OCT. 30, 1984

cable system in which such governmental entity holds ownership interest (other than programming on any channel designated for educational or governmental use), unless such control is exercised through an entity separate from the franchising authority. "(f) This section shall not apply to prohibit any combination of any interests held by any person on July 1, 1984, to the extent of the interests so held as of such date, if the holding of such interests was not inconsistent with any applicable Federal or State law or regulations in effect on that date. "(g) For purposes of this section, the term 'media of mass communications' shall have the meaning given such term under section 309(i)(3)(C)(i) of this Act. "PART III—FRANCHISING AND REGULATION "GENERAL FRANCHISE REQUIREMENTS

47 USC 541.

47 USC 201.

"SEC. 621. (a)(1) A franchising authority may award, in accordance with the provisions of this title, 1 or more franchises within its jurisdiction. "(2) Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure— "(A) that the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system; "(B) that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscriber, or a combination of both; and "(C) that the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of such facilities by the cable operator. "(3) In awarding a franchise or franchises, a franchising authority shall assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. "(b)(1) Except to the extent provided in paragraph (2), a cable operator may not provide cable service without a franchise. "(2) Paragraph (1) shall not require any person lawfully providing cable service without a franchise on July 1, 1984, to obtain a franchise unless the franchising authority so requires. "(c) Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service. "(d)(1) A State or the Commission may require the filing of informational tariffs for any intrastate communications service provided by a cable system, other than cable service, that would be subject to regulation by the Commission or any State if offered by a common carrier subject, in whole or in part, to title II of this Act. Such informational tariffs shall specify the rates, terms, and conditions for the provision of such service, including whether it is made available to all subscribers generally, and shall take effect on the date specified therein.

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98 STAT. 2787

"(2) Nothing in this title shall be construed to affect the authority of any State to regulate any cable operator to the extent that such operator provides any communication service other than cable service, whether offered on a common carrier or private contract basis. "(3) For purposes of this subsection, the term 'State' has the meaning given it in section 3(v). 47 USC 153. "(e) Nothing in this title shall be construed to affect the authority of any State to license or otherwise regulate any facility or combination of facilities which serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management and which does not use any public right-of-way. "FRANCHISE FEES

"SEC. 622. (a) Subject to the limitation of subsection (b), any cable 47 USC 542. operator may be required under the terms of any franchise to pay a franchise fee. "(b) For any twelve-month period, the franchise fees paid by a cable operator with respect to any cable system shall not exceed 5 percent of such cable operator's gross revenues derived in such period from the operation of the cable system. For purposes of this section, the 12-month period shall be the 12-month period applicable under the franchise for accounting purposes. Nothing in this subsection shall prohibit a franchising authority and a cable operator from agreeing that franchise fees which lawfully could be collected for any such 12-month period shall be paid on a prepaid or deferred basis; except that the sum of the fees paid during the term of the franchise may not exceed the amount, including the time value of money, which would have lawfully been collected if such fees had been paid per annum. "(c) A cable operator may pass through to subscribers the amount of any increase in a franchise fee, unless the franchising authority demonstrates that the rate structure specified in the franchise reflects all costs of franchise fees and so notifies the cable operator in writing. "(d) In any court action under subsection (c), the franchising authority shall demonstrate that the rate structure reflects all costs of the franchise fees. "(e) Any cable operator shall pass through to subscribers the amount of any decrease in a franchise fee. "(f) A cable operator may designate that portion of a subscriber's bill attributable to the franchise fee as a separate item on the bill. "(g) For the purposes of this section— "(1) the term 'franchise fee' includes any tax, fee, or assessment of any kind imposed by a franchising authority or other governmental entity on a cable operator or cable subscriber, or both, solely because of their status as such; "(2) the term 'franchise fee' does not include— "(A) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers); "(B) in the case of any franchise in effect on the date of the enactment of this title, payments which are required by the franchise to be made by the cable operator during the

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PUBLIC LAW 98-549—OCT. 30, 1984

term of such franchise for, or in support of the use of, public, educational, or governmental access facilities; "(C) in the case of any franchise granted after such date of enactment, capital costs which are required by the franchise to be incurred by the cable operator for public, educational, or governmental access facilities; "(D) requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or "(E) any fee imposed under title 17, United States Code. "(h)(1) Nothing in this Act shall be construed to limit any authority of a franchising authority to impose a tax, fee, or other assessment of any kind on any person (other than a cable operator) with respect to cable service or other communications service provided by such person over a cable system for which charges are assessed to subscribers but not received by the cable operator. "(2) For any 12-month period, the fees paid by such person with respect to any such cable service or other communications service shall not exceed 5 percent of such person's gross revenues derived in such period from the provision of such service over the cable system. "(i) Any Federal agency may not regulate the amount of the franchise fees paid by a cable operator, or regulate the use of funds derived from such fees, except as provided in this section. "REGULATION OF RATES

47 USC 543.

"SEC. 623. (a) Any Federal agency or State may not regulate the rates for the provision of cable service except to the extent provided under this section. Any franchising authority may regulate the rates for the provision of cable service, or any other communications service provided over a cable system to cable subscribers, but only to the extent provided under this section. "(b)(1) Within 180 days after the date of the enactment of this title, the Commission shall prescribe and make effective regulations which authorize a franchising authority to regulate rates for the provision of basic cable service in circumstances in which a cable system is not subject to effective competition. Such regulations may apply to any franchise granted after the effective date of such regulations. Such regulations shall not apply to any rate while such rate is subject to the provisions of subsection (c). "(2) For purposes of rate regulation under this subsection, such regulations shall— "(A) define the circumstances in which a cable system is not subject to effective competition; and "(B) establish standards for such rate regulation. "(3) The Commission shall periodically review such regulations, taking into account developments in technology, and may amend such regulations, consistent with paragraphs (1) and (2), to the extent the Commission determines necessary. "(c) In the case of any cable system for which a franchise has been granted on or before the effective date of this title, until the end of the 2-year period beginning on such effective date, the franchising authority may, to the extent provided in a franchise— "(1) regulate the rates for the provision of basic cable service, including multiple tiers of basic cable service;

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 PUBLIC LAW 98-549—OCT. 30, 1984

98 STAT. 2789

"(2) require the provision of any service tier provided without charge (disregarding any installation or rental charge for equipment necessary for receipt of such tier); or "(3) regulate rates for the initial installation or the rental of 1 set of the minimum equipment which is necessary for the subscriber's receipt of basic cable service. "(d) Any request for an increase in any rate regulated pursuant to subsection (b) or (c) for which final action is not taken within 180 days after receipt of such request by the franchising authority shall be deemed to be granted, unless the 180-day period is extended by mutual agreement of the cable operator and the franchising authority. "(e)(1) In addition to any other rate increase which is subject to the approval of a franchising authority, any rate subject to regulation pursuant to this section may be increased after the effective date of this title at the discretion of the cable operator by an amount not to exceed 5 percent per year if the franchise (as in effect on the effective date of this title) does not specify a fixed rate or rates for basic cable service for a specified period or periods which would be exceeded if such increase took effect. "(2) Nothing in this section shall be construed to limit provisions of a franchise which permits a cable operator to increase any rate at the operator's discretion; however, the aggregate increases per year allowed under paragraph (1) shall be reduced by the amount of any increase taken such year under such franchise provisions. "(f) Nothing in this title shall be construed as prohibiting any Federal agency, State, or a franchising authority, from— "(1) prohibiting discrimination among customers of basic cable service, or "(2) requiring and regulating the installation or rental of equipment which facilitates the reception of basic cable service by hearing impaired individuals. "(g) Any State law in existence on the effective date of this title which provides for any limitation or preemption of regulation by any franchising authority (or the State or any political subdivision or agency thereof) of rates for cable service shall remain in effect during the 2-year period beginning on such effective date, to the extent such law provides for such limitation or preemption. As used in this section, the term 'State' has the meaning given it in section 3(v).

47 USC 153.

(h) Not later than 6 years after the date of the enactment of this Report title, the Commission shall prepare and submit to the Congress a report regarding rate regulation of cable services, including such legislative recommendations as the Commission considers appropriate. Such report and recommendations shall be based on a study of such regulation which the Commission shall conduct regarding the effect of competition in the marketplace. "REGULATION OF SERVICES, FACILITIES, AND EQUIPMENT

"SEC. 624. (a) Any franchising authority may not regulate the 47 USC 544. services, facilities, and equipment provided by a cable operator except to the extent consistent with this title. "(b) In the case of any franchise granted after the effective date of this title, the franchising authority, to the extent related to the establishment or operation of a cable system—

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 98 STAT. 2790

Effective date.

PUBLIC LAW 98-549—OCT. 30, 1984

"(1) in its request for proposals for a franchise (including requests for renewal proposals, subject to section 626), may establish requirements for facilities and equipment, but may not establish requirements for video programming or other information services; and "(2) subject to section 625, may enforce any requirements contained within the franchise— "(A) for facilities and equipment; and "(B) for broad categories of video programming or other services. "(c) In the case of any franchise in effect on the effective date of this title, the franchising authority may, subject to section 625, enforce requirements contained within the franchise for the provision of services, facilities, and equipment, whether or not related to the establishment or operation of a cable system. "(d)(1) Nothing in this title shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States. "(2)(A) In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. "(B) Subparagraph (A) shall take effect 180 days after the effective date of this title. "(e) The Commission may establish technical standards relating to the facilities and equipment of cable systems which a franchising authority may require in the franchise. "(f)(1) Any Federal agency. State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in this title. "(2) Paragraph (1) shall not apply to— "(A) any rule, regulation, or order issued under any Federal law, as such rule, regulation, or order (i) was in effect on September 21, 1983, or (ii) may be amended after such date if the rule, regulation, or order as amended is not inconsistent with the express provisions of this title; and "(B) any rule, regulation, or order under title 17, United States Code. "MODIFICATION OF FRANCHISE OBLIGATIONS

47 USC 545.

"SEC. 625. (a)(1) During the period a franchise is in effect, the cable operator may obtain from the franchising authority modifications of the requirements in such franchise— "(A) in the case of any such requirement for facilities or equipment, including public, educational, or governmental access facilities or equipment, if the cable operator demonstrates that (i) it is commercially impracticable for the operator to comply with such requirement, and (ii) the proposal by the cable operator for modification of such requirement is appropriate because of commercial impracticability; or "(B) in the case of any such requirement for services, if the cable operator demonstrates that the mix, quality, and level of

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98 STAT. 2791

services required by the franchise at the time it was granted will be maintained after such modification. "(2) Any final decision by a franchising authority under this subsection shall be made in a public proceeding. Such decision shall be made within 120 days after receipt of such request by the franchising authority, unless such 120 day period is extended by mutual agreement of the cable operator and the franchising authority. "OaKD Any cable operator whose request for modification under Courts,us. subsection (a) has been denied by a final decision of a franchising authority may obtain modification of such franchise requirements pursuant to the provisions of section 635. "(2) In the case of any proposed modification of a requirement for facilities or equipment, the court shall grant such modification only if the cable operator demonstrates to the court that— "(A) it is commercially impracticable for the operator to comply with such requirement; and "(B) the terms of the modification requested are appropriate because of commercial impracticability. "(3) In the case of any proposed modification of a requirement for services, the court shall grant such modification only if the cable operator demonstrates to the court that the mix, quality, and level of services required by the franchise at the time it was granted will be maintained after such modification. "(c) Notwithstanding subsections (a) and (b), a cable operator may, upon 30 days' advance notice to the franchising authority, rearrange, replace, or remove a particular cable service required by the franchise if— "(1) such service is no longer available to the operator; or "(2) such service is available to the operator only upon the payment of a royalty required under section 801(b)(2) of title 17, United States Code, which the cable operator can document— "(A) is substantially in excess of the amount of such payment required on the date of the operator's offer to provide such service, and "(B) has not been specifically compensated for through a rate increase or other adjustment. "(d) Notwithstanding subsections (a) and Ob), a cable operator may take such actions to rearrange a particular service from one service tier to another, or otherwise offer the service, if the rates for all of the service tiers involved in such actions are not subject to regulation under section 623. "(e) A cable operator may not obtain modification under this section of any requirement for services relating to public, educational, or governmental access. "(f) For purposes of this section, the term 'commercially impracticable' means, with respect to any requirement applicable to a cable operator, that it is commercially impracticable for the operator to comply with such requirement as a result of a change in conditions which is beyond the control of the operator and the nonoccurrence of which was a basic assumption on which the requirement was based. "RENEWAL

"SEC. 626. (a) During the 6-month period which begins with the 47 USC 546. 36th month before the franchise expiration, the franchising authority may on its own initiative, and shall at the request of the cable

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PUBLIC LAW 98-549—OCT. 30, 1984

operator, commence proceedings which afford the public in the franchise area appropriate notice and participation for the purpose of— "(1) identifying the future cable-related community needs and interests; and "(2) reviewing the performance of the cable operator under the franchise during the then current franchise term. "(b)(1) Upon completion of a proceeding under subsection (a), a cable operator seeking renewal of a franchise may, on its own initiative or at the request of a franchising authority, submit a proposal for renewal. "(2) Subject to section 624, any such proposal shall contain such material as the franchising authority may require, including proposals for an upgrade of the cable system. "(3) The franchising authority may establish a date by which such proposal shall be submitted. "(c)(1) Upon submittal by a cable operator of a proposal to the franchising authority for the renewal of a franchise, the franchising authority shall provide prompt public notice of such proposal and, during the 4-month period which begins on the completion of any proceedings under subsection (a), renew the franchise or, issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, commence an administrative proceeding, after providing prompt public notice of such proceeding, in accordance with paragraph (2) to consider whether— "(A) the cable operator has substantially complied with the material terms of the existing franchise and with applicable law; "(B) the quality of the operator's service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, quality, or level of cable services or other services provided over the system, has been reasonable in light of community needs; "(C) the operator has the financial, legal, and technical ability to provide the services, facilities, and equipment as set forth in the operator's proposal; and "(D) the operator's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests. "(2) In any proceeding under paragraph (1), the cable operator shall be afforded adequate notice and the cable operator and the franchise authority, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection (a)), to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding. "(3) At the completion of a proceeding under this subsection, the franchising authority shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of such decision to the cable operator. Such decision shall state the reasons therefor. "(d) Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subparagraphs (A) through (D) of subsection (c)(1), pursuant to the record of the proceeding under subsection (c). A franchising authority may not base a denial of renewal on a failure to substantially

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98 STAT. 2793

comply with the material terms of the franchise under subsection (c)(1)(A) or on events considered under subsection (c)(1)(B) in any case in which a violation of the franchise or the events considered under subsection (c)(1)(B) occur after the effective date of this title unless the franchising authority has provided the operator with notice and the opportunity to cure, or in any case in which it is documented that the franchising authority has waived its right to object, or has effectively acquiesced. "(e)(1) Any cable operator whose proposal for renewal has been Courts, U.S. denied by a final decision of a franchising authority made pursuant to this section, or has been adversely affected by a failure of the franchising authority to act in accordance with the procedural requirements of this section, may appeal such final decision or failure pursuant to the provisions of section 635. "(2) The court shall grant appropriate relief if the court finds that— "(A) any action of the franchising authority is not in compliance with the procedural requirements of this section; or "(B) in the event of a final decision of the franchising authority denying the renewal proposal, the operator has demonstrated that the adverse finding of the franchising authority with respect to each of the factors described in subparagraphs (A) through (D) of subsection (c)(1) on which the denial is based is not supported by a preponderance of the evidence, based on the record of the proceeding conducted under subsection (c). "(f) Any decision of a franchising authority on a proposal for renewal shall not be considered final unless all administrative review by the State has occurred or the opportunity therefor has lapsed. "(g) For purposes of this section, the term 'franchise expiration' means the date of the expiration of the term of the franchise, as provided under the franchise, as it was in effect on the date of the enactment of this title. "(h) Notwithstanding the provisions of subsections (a) through (g) of this section, a cable operator may submit a proposal for the renewal of a franchise pursuant to this subsection at any time, and a franchising authority may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections (a) through (g) of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections (a) through (g). "CONDITIONS OF SALE

"SEC. 627. (a) If a renewal of a franchise held by a cable operator is 47 USC 547. denied and the franchising authority acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be— "(1) at fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself, or "(2) in the case of any franchise existing on the effective date of this title, at a price determined in accordance with the

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 98 STAT. 2794

PUBLIC LAW 98-549—OCT. 30, 1984

franchise if such franchise contains provisions applicable to such an acquisition or transfer, "(b) If a franchise held by a cable operator is revoked for cause and the franchising authority acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be— "(1) at an equitable price, or "(2) in the case of any franchise existing on the effective date of this title, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer. "PART IV—MISCELLANEOUS PROVISIONS "PROTECTION OF SUBSCRIBER PRIVACY

47 USC 551.

"SEC. 631. (a)(1) At the time of entering into an agreement to provide any cable service or other service to a subscriber and at least once a year thereafter, a cable operator shall provide notice in the form of a separate, written statement to such subscriber which clearly and conspicuously informs the subscriber of— "(A) the nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information; "(B) the nature, frequency, and purpose of any disclosure which may be made of such information, including an identification of the types of persons to whom the disclosure may be made; "(C) the period during which such information will be maintained by the cable operator; "(D) the times and place at which the subscriber may have access to such information in accordance with subsection (d); and "(E) the limitations provided by this section with respect to the collection and disclosure of information by a cable operator and the right of the subscriber under subsections (f) and (h) to enforce such limitations. In the case of subscribers who have entered into such an agreement before the effective date of this section, such notice shall be provided within 180 days of such date and at least once a year thereafter. "(2) For purposes of this section, the term 'personally identifiable information' does not include any record of aggregate data which does not identify particular persons. "(b)(l) Except as provided in paragraph (2), a cable operator shall not use the cable system to collect personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned. "(2) A cable operator may use the cable system to collect such information in order to— "(A) obtain information necessary to render a cable service or other service provided by the cable operator to the subscriber; or "(B) detect unauthorized reception of cable communications. "(c)(1) Except as provided in paragraph (2), a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.

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 PUBLIC LAW 98-549—OCT. 30, 1984

98 STAT. 2795

"(2) A cable operator may disclose such information if the disclosure is— "(A) necessary to render, or conduct a legitimate business activity related to, a cable service or other service provided by the cable operator to the subscriber; "(B) subject to subsection (h), made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed; or "(C) a disclosure of the names and addresses of subscribers to any cable service or other service, if— "(i) the cable operator has provided the subscriber the opportunity to prohibit or limit such disclosure, and "(ii) the disclosure does not reveal, directly or indirectly, the— "(I) extent of any viewing or other use by the subscriber of a cable service or other service provided by the cable operator, or "(II) the nature of any transaction made by the subscriber over the cable system of the cable operator. "(d) A cable subscriber shall be provided access to all personally identifiable information regarding that subscriber which is collected and maintained by a cable operator. Such information shall be made available to the subscriber at reasonable times and at a convenient place designated by such cable operator. A cable subscriber shall be provided reasonable opportunity to correct any error in such information. "(e) A cable operator shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (d) or pursuant to a court order. "(f)(1) Any person aggrieved by any act of a cable operator in Courts, U.S. violation of this section may bring a civil action in a United States district court. "(2) The court may award— "(A) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; "(B) punitive damages; and "(C) reasonable attorneys' fees and other litigation costs reasonably incurred. "(3) The remedy provided by this section shall be in addition to any other lawful remedy available to a cable subscriber. "(g) Nothing in this title shall be construed to prohibit any State or any franchising authority from enacting or enforcing laws consistent with this section for the protection of subscriber privacy. "(h) A governmental entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order only if, in the court proceeding relevant to such court order— "(1) such entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case; and "(2) the subject of the information is afforded the opportunity to appear and contest such entity's claim.

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 98 STAT. 2796

PUBLIC LAW 98-549—OCT. 30, 1984 CONSUMER PROTECTION

47 USC 552.

"SEC. 632. (a) A franchising authority may require, as part of a franchise (including a franchise renewal, subject to section 626), provisions for enforcement of— "(1) customer service requirements of the cable operator; and "(2) construction schedules and other construction-related requirements of the cable operator. "(b) A franchising authority may enforce any provision, contained in any franchise, relating to requirements described in paragraph (1) or (2) of subsection (a), to the extent not inconsistent with this title. "(c) Nothing in this title shall be construed to prohibit any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not inconsistent with this title. UNAUTHORIZED RECEPTION OF CABLE SERVICE

47 USC 553.

erimes and misdemeanors.

Courts, U.S.

"SEC. 633. (a)(1) No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law. "(2) For the purpose of this section, the term 'assist in intercepting or receiving' shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorized reception of any communications service offered over a cable system in violation of subparagraph (1). "(b)(1) Any person who willfully violates subsection (a)(1) shall be fined not more than $1,000 or imprisoned for not more than 6 months, or both. "(2) Any person who violates subsection (a)(1) willfully and for purposes of commercial advantage or private financial gain shall be fined not more than $25,000 or imprisoned for not more than 1 year, or both, for the first such offense and shall be fined not more than $50,000 or imprisoned for not more than 2 years, or both, for any subsequent offense. "(c)(1) Any person aggrieved by any violation of subsection (a)(1) may bring a civil action in a United States district court or in any other court of competent jurisdiction. "(2) The court may— "(A) grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of subsection (a)(1); "(B) award damages as described in paragraph (3); and "(C) direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails. "(3)(A) Damages awarded by any court under this section shall be computed in accordance with either of the following clauses: "(i) the party aggrieved may recover the actual damages suffered by him as a result of the violation and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages; in determining the violator's profits, the party aggrieved shall be required to prove only the violator's gross revenue, and the violator shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the violation; or

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