CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

As we reported last year, way back in 2001 the Commission had made noises about requiring digital Class A TV licensees to file Form 317 (and pay their share of any ancillary/supplementary fees they may have reaped). And then in 2004 it made similar noises about digital LPTV and TV translators. But despite its clearly stated intentions, the Commission neglected to jump through all the necessary bureaucratic hoops. As a result, translator/LPTV/Class A licensees have thus far been off the hook on this reporting requirement.

Not any more. The report is now required of all digital TV broadcasters.

Note that even digital TV stations that offered no such services must still file Form 317 report by December 1. Obviously, if you offered no such services, the report will be short and you won’t have to do any calculations or pay any money to the Commission – but, if you have a facility that is operating digitally to broadcast television programming, the FCC wants a Form 317 report from you.

As with most forms these days, the Form 317 must be filed electronically through CDBS. Also, keep in mind for planning purposes that only one station goes on each report. Thus, if you are a licensee with a number of digital translators, you’ll probably need to allow more time for filing.

If you would like any help in navigating the electronic filing or have any questions about the form and what needs to be included, please let us know. While we won’t help with any payments that may be due, we can assist you in the filing process.

Because of the on-going transition to digital operation in that particular sector, LPTV/Class A/Translator licensees may be operating a single analog station, or a single digital station, or two companion stations (one analog, one digital). Regardless of the mode you’re in (i.e., digital or analog), the FCC will be looking for a reg fee from you. That’s not unreasonable. But then the Commission adds: “In instances in which a licensee is operating in both an analog and digital mode as a simulcast, a single regulatory fee will be assessed for this analog facility that has a digital companion channel.” Note, in particular, the phrase “as a simulcast”. It’s not clear exactly what that is intended to mean. 

Presumably, if you have two companion channels, each broadcasting identical programming (one in analog, one in digital), you’d only owe a single reg fee. And if you have two such channels but provide completely different programming on each, we’re guessing that the Commission expects you to pay two separate fees, one for each.

But what if you’re using the digital station to provide not only a digital version of the analog’s programming, but also streams of other, completely separate programming? Arguably you’d be operating the two stations as a simulcast, meaning you’d only be stuck with a single fee. But the fact that you’re providing additional programming on the digital station might mean that it’s not a “simulcast” as the Commission means it.  We don’t know what the answer to this seeming conundrum is, but if you’re in this situation, it would probably be a good idea to get the answer tied down before you pay.

And speaking of paying, heads up. The Commission cautions that the fees are due when they are due, payable in full, thank you very much. (Late filers get hit with a 25% late fee.) If you think you’re entitled to a full waiver, or even just a reduction, you’re supposed to tender the full amount by the deadline, along with your request for waiver/reduction. If you’d rather not tender any payment at all with your request, you’ve got to request a deferral of the deadline – and that request must be accompanied by a showing of financial hardship. In other words, you can’t just plead poverty and expect to avoid having to pay by the deadline; rather, you have to document your hardship at the time you request the waiver/reduction.

Which brings us to the question of deadlines. When are this year’s fees due? The Commission hasn’t announced that yet, but it does allude in passing to a “September 2011 filing window”. Looks like we may not have to forfeit the deposit on that August beach house rental after all. (Check back here for updates on the deadline front.)

Finally, the Commission wraps up its Report and Order with a commitment to revisit “the nature and extent of all changes that need to be made to our regulatory fee schedule and calculations”. That inquiry – which the FCC assures us will be initiated before the end of 2011 – may lead to a “re-assess[ment of] the regulatory fee burden of all fee categories” as well as a “rebalancing of regulatory fees among existing service providers”. The Commission has been toying with the notion of such a proceeding for years, but this time it seems to be serious about it. We’ll see.

Analog Curtain Lowers. LPTV licensees have been in digital limbo for years, allowed to convert to digital voluntarily but not knowing for sure when they would be forced to join the DTV ranks. Getting the allotment of full power DTV channels squared away was one factor that had to be resolved first – but that occurred two years ago. In the meantime, though, the Commission has embraced the notion of “repacking” the spectrum to squeeze out more space for broadband use by removing up to 20 broadcast TV channels. The anticipated “repacking” process is almost certain to affect a sizable number of full power DTV allotments, which would in turn affect the spectrum available for digital LPTV.

Recognizing that it would be rather harsh to impose a digital transition deadline on LPTV stations before the effects of the anticipated “repacking” program can be known, the FCC figures that a four-year transition period, ending on September 1, 2015, should provide adequate time for all concerned. (The FCC does not agree with commenters who urged that marketplace forces should be allowed to dictate the pace of the transition.)

The FCC has encouraged NTIA to ask Congress to extend the existing program for reimbursing LPTV digital transition costs. Some $30 million remain in unspent funds in that program. The FCC does not discuss either: (a) the program’s statutorily-mandated eligibility criteria, which strongly favor the most rural stations and completely exclude urban stations; or (b) the program’s dollar limits of $6,000 and $20,000, neither of which fully covers conversion costs.

No More New Analog Licenses. The 2d R&O affirms the FCC’s earlier decision to dismiss all pending applications for new analog LPTV stations that were not amended by May 24, 2010, to specify digital operation. No surprises there.

Relief for the Nervous. Digital equipment is expensive, money doesn’t grow on trees, and banks are not known for their generosity.  To ease these burdens, the FCC has automatically extended all currently outstanding digital CPs for flash cuts (i.e., on-channel conversion to digital) or digital companion channels for existing analog stations. No matter when those permits were issued or how many extensions were previously requested, all these permits have now been extended to September 1, 2015. 

Construction permits for new stations have not been automatically extended. All such existing permits and future permits will expire three years after issuance. Moreover, if someone holds permits for analog and digital companion channels, both unbuilt, the earlier expiration date on the analog permit will remain the expiration date for both permits. However, the permittee need not build out the analog station to save the digital permit. Construction of just the digital facility will be sufficient; once the digital facility has been built and licensed, the associated analog permit will be canceled.

Any digital permitee who can’t get its digital facilities built by September 1, 2015, will have one last opportunity to apply for an extension (based on factors such as Acts of God, unforeseeable circumstances, circumstances beyond the permittee’s control, and financial hardship). All such extensions must be requested no later than May 1, 2015; any extensions granted will expire March 1, 2016. Anyone needing more time than that will have to request “tolling” of their construction period under Section 73.3598.

Out of Core, Out of Luck. Stations (analog or digital) operating on “out-of core” Channels 52-69 will not enjoy the benefit of either the 2015 deadline or the extension process. They must stop operating by December 31, 2011 – no exceptions – and must file an application for an “in-core” channel (Channels 2-51) by September 1, 2011. Channel change applications filed after that date will be dismissed. 

Waivers of the filing deadline may be requested; but in no event will continued operation above Channel 51 be permitted after the end of 2011. The FCC believes that clearing LPTV operations from the out-of-core channels will facilitate the prompt deployment of 4G LTE services in the 700 MHz band. As has been the case for some time, wireless 700 MHz band licensees ready to operate can still force LPTV stations to vacate out-of-core at any time on 120 days notice, even before December 31, 2011.

The Commission means business when it comes to clearing the out-of-core channels: stations still awaiting approval of new in-core channels at the end of this year must go dark and risk permanent loss of their license if they remain dark for more than one continuous year. Stations facing that draconian fate may escape the noose by requesting Special Temporary Authority to operate on an in-core channel pending grant of a permanent grant.

Let the World Know You Are Moving. Veterans of the 2009 full power DTV transition will recall the extensive consumer education campaigns mandated by the Commission to alert viewers to the practical consequences of the transition. The FCC contemplates a similar campaign as LPTV stations complete the transition, but details have been left for later.  While the FCC may eventually adopt most (if not all) of its 2009 approach, for now the only requirement is that licensees broadcast announcements 30 days before terminating analog operation if they have program origination capability. (Stations lacking such capability must find another way (e.g., newspaper notices) to publicize their transition.) Broadcast announcements must be aired at the time of each station’s peak viewing, but frequency and content are left to individual station discretion. Stations already transmitting digital signals (having already shut down their analog service) do not have to make any announcements.

Minor Change Definition Tightened. LPTV stations applying for displacement to a new channel are restricted to a 30-mile change in transmitter site. Other changes may exceed that distance and still be classified as “minor” as long as there is any overlap of licensed and proposed protected service contours. The FCC will now impose the 30-mile limit on all minor changes in addition to the contour overlap requirement: any application not meeting both standards will be deemed a “major” rather than a “minor” change. That distinction is crucial here, since there’s a freeze on major change applications (as well as new applications) currently in effect – so absent a waiver of the freeze, a major change application will be returned by the FCC.

More Juice in the Lowlands. The FCC’s spectrum repacking proposal may include moving LPTV stations to available VHF channels. VHF has not been favored by full power TV stations who feel it’s inhospitable for digital service generally and mobile services in particular.   Not surprisingly, LPTV stations – most of which are not on cable or satellite – see any move to herd them onto the VHF band as another way to crush them, although some have talked about possible use of VHF for alternative modulation schemes. The 300-watt LPTV VHF power limit has also proved vexing for LPTV stations, compared to the 15 kW UHF power limit. 

To enhance the attractiveness of VHF, the FCC has increased the LPTV power limit by 10 times, to 3,000 watts, on all VHF channels. (The Commission did not address proposals to allow more power to high-band VHF Channels 7-13, but the universal 3 kW limit should still be attractive to many stations. It also declined to increase the 15 kW UHF power limit since most LPTV stations can already cover their communities of license amply at that power level.)

More Masking Choices. All TV stations wear “emission masks” which curtail unintended signal radiation outside of their assigned channels. Historically, LPTV stations have had only a choice of a “simple” or a “stringent” mask, both of which are more relaxed and less expensive than the mask used by full service stations. The FCC will continue to allow simple or stringent masks but will now also allow LPTV stations to use a full service mask on a voluntary basis. A full service mask will allow more LPTV stations to find available channels or to improve their facilities, as it will reduce instances of interference to first-adjacent channel stations.

Antenna Pattern Flexibility. LPTV stations currently file information about their directional antenna patterns in the horizontal plane, but the vertical pattern is assumed under Section 74.793(d). Reliance on assumed values keeps some stations from complying with interference requirements. To counter that, the new rules permit stations use their actual vertical pattern in interference calculations. Application forms will be revised to accommodate individual station pattern values. Submission of actual vertical pattern data will be voluntary; stations not submitting actual data will continue to be evaluated based on an assumed pattern. (Interesting unresolved strategy question: The FCC does not say whether a station that would benefit from the actual pattern of another station can file the pattern for the other station if the other station does not submit its own pattern.)

Class A Stations Get To Choose their Channel. An LPTV station with both an analog and a companion digital channel is already permitted to choose either channel as its permanent digital home when analog service is terminated. If they want to stay on their digital companion channel, they only have to file an electronic notice that the analog station has gone dark with an exhibit electing the digital channel. If they want to move their digital operation to their analog channel, they must file a flash-cut construction permit application and then shut down the companion channel when the application for a license to cover digital operation on their analog channel is filed.

Class A stations have not previously enjoyed this flexibility: only their analog channel had primary spectrum (i.e., Class A) status, while their companion digital channel was deemed to have the same secondary status as LPTV stations. Class A stations with both analog and digital operations will now be free to elect either of their channels for permanent digital operation. They can apply for a construction permit to flash-cut their analog channel or may migrate their primary status to their digital channel without a CP by simply filing a Form 302-CA license application for the digital channel. That application must include a certification that the digital channel complies with all Class A interference requirements.

Pay the Piper. Both full power and LPTV licensed stations that provide non-broadcast ancillary services (such as digital data) in addition to video program streams are required to file Form 317 in December of each year and pay 5% of their gross ancillary services revenues to the government. Digital LPTV stations operating under an STA without a license have been exempt, but no longer. All digital LPTV stations must now file Form 317 each December. If they have no ancillary services, they may so state and pay nothing. (While some licensed stations without any ancillary services have not filed Form 317, the form is so easy to complete that it seems more prudent to file than to risk an FCC inquiry as to why no report was submitted.)

Enough is Enough. Interested observers will note that the 2d R&O leaves unresolved a number of proposals, including: refusing to accept supposedly unrealistic antenna patterns that may not be achievable in practice; authority to lease part of a TV channel to wireless service providers; classification of analog Channel 6 operation as an ancillary service, to permit it to continue after 2015; relief from the freeze on applications for new stations and major changes; relaxation of eligibility requirements for Class A status; and authorization for alternative forms of signal modulation other than the current ATSC digital standard.

When Does the Race Start? The new rules will become effective 30 days after publication in the Federal Register. (Check back here for updates on that front.) Some aspects of the new rules (the FCC doesn’t say which) involve “information collections” requiring prior approval by the Office of Management and Budget under the Paperwork Reduction Act. Getting that approval could add a couple of months to the effective date. We hope to learn next week whether applications proposing full service emission masks and Class A channel elections may be filed immediately or must await the effective date of the new rules.

First, in recognition of the fact that the digital TV transition continues on for LPTV, TV Translator and Class A licensees, the Commission observes that

a fee will be assessed for each facility operating either in an analog or digital mode. In instances in which a licensee is operating in both an analog and digital mode as a simulcast, a single regulatory fee will be assessed for this analog facility that has a digital companion channel.

The Commission may revisit its instructions on this point “[a]s greater numbers of facilities convert to digital mode”.

Second, this year the FCC will not be sending out “pre-bill” reminders to broadcasters advising them of the fees they’re being assessed. All that information should be available on the FCC’s website, though.

Third, on the AM/FM side, the Commission notes that a station’s fee is based in part on the population it serves. Populations tend to change every ten years when the Census is completed and released, and such changes could affect radio licensees’ reg fees. But not this year. Even though the latest Census was technically completed last year, its results are still unofficial and subject to change – which means that this year’s regulatory fees will be based on the 2000 Census, not the 2010. (Additional rationale: since 2011 reg fees are calculated based on the subject station’s status as of October 1, 2010, the FCC thinks it would be “inappropriate” to rely on incomplete 2010 population figures.)

The proposed fees are just that – proposals. We won’t know the final fees until sometime this summer, although historically the final fees tend not to stray too far from the initial proposals. We also do not yet know when the fees will be due, although that tends to be in August or September. Look for an announcement sometime mid-Summer.

But then the Commission got to considering what should happen if and when Class A television, LPTV, and TV translator stations were to begin the big move to digital. Way back in 2001, the Commission decided that it would allow digital Class A TV stations to offer ancillary/supplementary services, and that it would apply to them the same reporting and revenue payment requirements in place for full-power stations. Then in 2004, the Commission decided that, along with other rule changes, it would also apply the Form 317 requirements to digital LPTV and TV translator licensees. Both in 2001 and then again in 2004, the Commission indicated that it would change the instructions to FCC Form 317 to reflect the new groups required to file. It also revised its rules to refer specifically to the fact that Class A’s would be required to file.

But a job is never really done until the paperwork’s been completed, and it appears that the Commission came up a little shy in that department. 

First, the Commission didn’t bother actually to revise the form. As a result, even today the instructions still call for only digital television licensees and permittees to file, with no mention at all of Class A, LPTV or TV translators. Mind you, the instructions have been changed in the interim to specify permittees in addition to licensees as required filers. That change was made to conform with a 2008 expansion of the universe of filers (originally, only licensees, but not permittees, were required to file). But the low power services remained forgotten. 

Second, and perhaps as a result of the first issue, the Commission never bothered to ask the Office of Management and Budget (OMB) for its approval to impose the Form 317 reporting requirement on the low power universe – a step which is required by the PRA, as the FCC has acknowledged both generally (here) and with explicit respect to the inclusion of Class A’s, etc., in the Form 317 club.

Oops. 

(OMB records indicate that, between 2004 and today, the FCC twice sought OMB approval of Form 317 revisions, but in neither of those submissions did the FCC even allude to, much less specifically address, Class A, LPTV or TV translators.)

Whether the FCC’s past failure to follow up on this was a matter of design or inadvertence, the Commission appears finally ready to take the official plunge. In October, the Commission published a notice in the Federal Register (a) advising of its plan to revise Form 317 to require Class A TV, LPTV, and TV translator stations to file, and (b) requesting comments on that plan. After any responsive comments have been filed, the FCC will ship the revised form off to OMB for its review. But since the initial deadline for comments to the Commission isn’t until December 20, OMB isn’t likely to see the proposed revision until late December/early January, at which point OMB will invite another round of comments.

These circumstances appear to make it impossible for Class A TV, LPTV, and TV translator stations to be required to meet the December 1 Form 317 filing deadline. 

Even if Form 317 is not filed, a Class A or LPTV station has to pay 5% of ancillary services revenues to the government. Some have filed Form 317 to establish on the record that they do not in fact owe any fees. But for those who prefer to minimize paper work (even electronic paper), the FCC cannot take any enforcement action this year against those who do not file.

Be ready for next year, though!

Digital Conversion Deadline – 2012. However the digital transition for LPTV stations may shake out, the FCC currently thinks that it should be wrapped up sometime in 2012 (i.e., “approximately three years after the June 12, 2009 full-power transition date”). 

A 2012 deadline for finishing the process? The FCC understands that this deadline may be a problem. But it figures that most, but not all, full-power stations made the transition in only about four-five years, and many LPTV stations have already availed themselves of the opportunity to convert to digital. With knowledge gleaned from that transition experience, the Commission speculates that three years might be enough finish up with LPTV. 

Of course, that three-year period would start as of the full-power transition date, June 12, 2009 – meaning that more than one-third of the time has already passed. Telling LPTV stations in September, 2010, that their digital transition countdown started 15 months ago is a bit of a stretch. On top of that, there are some 7,500 LPTV stations compared to only about 1,800 full-power stations. The logistics alone (e.g., equipment manufacture, installation, tower rigging) for all these stations are not likely to permit completion by a deadline barely two years away.

Further complicating matters is the National Broadband Plan (NBP).  Among its various ambitions, the NBP would repack the TV spectrum to free up 120 MHz of TV spectrum for broadband. That would reduce the spectrum available for all over-the-air TV considerably – so much so that many LPTV stations may not be able to find suitable new homes. The idea of spending a lot of money to convert to digital, only to have to change channels again or even be shut down a year or two later by broadband, is unsettling, if not terrifying. 

The FCC is not oblivious to these problems, but it may be a bit unrealistic about possible solutions. For example, the NPRM mentions an NTIA grant program to help pay for the cost of digital transmitters. But it fails to mention that: NTIA is limited by statute to funding rural stations; grant maximums are $6,000 and $20,000, far below the cost of a digital transmitter; and grants are made only after the grantee has shelled out its own cash to buy the equipment. (The NPRM does solicit comments detailing the anticipated practical considerations – including particularly conversion costs – that LPTV stations are likely to face.)

The Commission also wants to know what kind of community outreach efforts it should plan for the LPTV transition. How many of the bells and whistles imposed ad nauseam during the full-power transition (e.g., audience-education efforts, call-in centers, re-scanning instructions) should be dusted off and re-deployed?

And the FCC invites comments on whether the deadline should be later, perhaps 2015, and whether exceptions should be made in hardship cases or communities where LPTV is the only available over-the-air TV service.

However much LPTV stations may be quaking in their boots at this point, the fact remains that more than half have already applied to the FCC for some kind of digital conversion, and the current pace of digital applications is pretty brisk. The real question is how many stations still feel that there is any audience for their analog signals and, as a result, want to postpone conversion to continue to serve that analog audience. Some suggest that minority and niche audiences and rural residents often served by LPTV stations still have a lot of analog receivers, but statistics are not plentiful.

700 MHz Band Clear-Out Deadline – December 31, 2011. Turning to Channels 52-69, the FCC says that enough is enough. Whether or not those channels are being put to use by their non-broadcast licensees, it’s time to clear out the broadcast hold-overs – all of whom happen to be LPTVs. Now that the full-power transition has come and gone and full-power stations are no longer taking up two channels each, channels in “the core” (i.e., below 52) are as easy to come by as they are going be. 

Accordingly, the FCC proposes to require all LPTV stations on Channels 52-69 to apply to move to lower channels by June 30, 2011, and to move there by December 31, 2011. 

There may be some practical problems with that ambitious schedule. Can the FCC process all these applications in six months? How fast can the FCC resolve conflicts if two stations apply for the same channel? The answer, we suspect, is that those who wait until the last day to file applications will pay the price: earlier filers will have more time to work out kinks in their FCC applications and get grants, leaving them time to build; and since applications are processed on a first-come, first-served basis, conflicts should arise only if two stations file on the same day. 

Additionally, the NPB repacking plan could gum up the works here as well. The scope of the repacking proposal might be clear before June 30, 2011, but then again it might not – in which case the process of picking a lower channel, and then obtaining authority to use it, may turn out to be risky business.

The Freeze Is On. Effective immediately, no more applications will be accepted for new analog LPTV stations on any channel. Existing stations on Channel 52-69 may no longer request analog modifications except in extreme hardship cases (think involuntary loss of transmitter site), and no new digital companion applications will be accepted on Channels 52-69, even if no lower channel is available.

“Minor” Change?   The FCC proposes to limit transmitter site changes in “minor” change applications to 30 miles. Currently, a proposed change is “minor” if there is any overlap between the old and new service contours. By proposing a smidgen of overlap, some stations have succeeded in moving long distances into new markets, including urban markets. As proposed in the NPRM, moves of more than 30 miles would be deemed “major” changes, which are currently forbidden in urban areas. (The FCC says it plans to remove geographic restrictions on first come, first-served applications for new stations and major changes – although it doesn’t say when.)

VHF To The Rescue? With the likelihood of NBP-induced spectrum scarcity in mind, eyes are turning to VHF channels, which aren’t suitable for broadband (and not ideal for digital television, either). The FCC nevertheless asks whether VHF channels may become a good home for digital LPTV stations, and it offers the carrot of a power increase above the present 300-watt limit. VHF LPTV stations, particularly those on Channels 7-13, have been clamoring for more power for several years, and the door may now be open to meet that need. In fact, the FCC invites comments on whether power increases and/or changes in interference standards are needed for all digital LPTV stations.

Channel Surrender.  Analog LPTV stations with companion digital channels have, as a matter of policy, been permitted to terminate analog operation and either keep their companion digital or move their digital operation to their analog channel. The FCC proposes to make that policy permanent. In the past, Class A stations have not enjoyed the same degree of choice, because their companion channel was not afforded Class A spectrum priority. Now the FCC proposes to give Class A stations the same ability to choose to operate digitally on their analog channel or their companion channel, and whichever channel they select will be granted Class A status. This change will be of significant benefit to Class A stations whose analog channels are not suitable for digital operation and who thus have little choice but to stick with their companion channel and need a way to retain Class A status.

Vertical Radiation Patterns/Emission Masks. LPTV antennas do not always have the same horizontal and vertical radiation patterns, but FCC interference studies are based on only the horizontal plane and assumed vertical characteristics which may not accurately depict actual operation. The FCC now proposes to require vertical pattern information in applications for new or modified stations. Existing stations not making changes may either: (a) file their vertical pattern or (b) continue to rely on the old assumptions. 

The FCC also proposes to allow the use of a full-power TV digital emission mask by LPTV stations, in addition to the previously authorized simple and stringent masks. Because the full power mask exceeds the performance of a stringent mask, it will allow more digital LPTV stations to avoid predicted interference to first-adjacent channel stations, opening a door for some applications that were previously stymied.

Ancillary/Supplementary Services Fee. Digital stations – LPTV and full-power – are permitted to provide the same subscription-based, non-broadcast ancillary services on their spare digital capacity as their full-power colleagues. Since 2004, digital LPTV licensees have, just like full-powered licensees, had to pay the same annual fee of 5% of the gross revenue derived from such services.  But in 2007, the Commission expanded that fee obligation on the full-power side to include any authorized DTV stations, not just “licensees” (in other words, stations operating pursuant to an STA would be subject to the fee as well). The Commission now proposes to close the loop by extending that tweak to LPTVs as well. 

And finally, the NPRM notes that a petition asking that LPTV licenses be made secondary to “White Spaces” unlicensed broadband use of vacant TV channels was denied in the separate White Spaces rule making.

Comments will be due 60 days after the Notice of Proposed Rule Making appears in the Federal Register, with replies 30 days later. We will post the deadline when available. Of course, by the time the comment cycle has been completed, and a decision is reached, there will probably be less than one year left in the FCC’s theoretical three-year transition period if the proposed 2012 deadline sticks.

The FCC’s rules specify that a “major” amendment results in assignment of a new file number. The rules also say that applications are filed on a first-come, first-served basis, with each filing taking priority over any conflicting application filed on a later date. Back in 2000, applications filed during in the window were all treated as if they were filed on the last day for prioritization purposes – so it didn’t make any difference whether you filed on the first day of the window or the last. But if each amendment is assigned a new file number on the day it is submitted, the implication is that the first applicant to amend in 2010 would prevail over any later amenders, even if the later amenders were timely back in 2000 and, thus, presumably entitled to compete in an auction. If that’s really how the Commission plans to proceed, it could set off a race to be the first to amend. 

That approach – which is not specifically laid out in the Division’s public notice – seemed a bit unusual, upsetting the expectations of those who filed in 2000 –  so we dug into the question a bit more and finally got a clarification. Yes, each application may be assigned a new file number on the day it is amended. But the file number will not necessarily be determinative of any priority because mutual exclusivity among the applications on the list will again be evaluated as of the last day of the amendment period (i.e., May 24), at least if they don’t create any new mutual exclusivities that did not exist before. In other words, all amendments filed by May 24 date will be prioritized as if they had been filed on that day. So it may be safe to wait until May 24 after all – but since the FCC has not formally announced that this is, in fact, how it will proceed, do you really want to roll those dice?

Another consideration to bear in mind is that although the public notice says that the listed applications must be amended “to specify digital operations,” it appears that that’s not the only kind of amendment that can be filed. Because the mandated amendments will be treated as seeking “major changes” – as the public notice says – just about any aspect of the application is fair game for changes: channel, transmitter site, and city of license. In effect, each amendment will be treated as an application for a new station and can include anything that could be included in a completely new application.  

And at least some such amendments must be contemplated here, because the rules have changed a boatload in the ten years or so since most of the applications were filed. For example, the Commission has stopped issuing new TV authorizations above Channel 51 – but a number of the listed applications specify operation on now-forbidden channels. They must be amended to a lower channel or be consigned to the trash heap. Ditto for folks who had filed for communities within 75 miles of large markets – a zone from which new station applications are excluded. Some applicants, apparently unaware that the same exclusion zones existed in 2000, specified operations inside the zones. The FCC never examined the technical acceptability of any of the applications. Had it done so, those within the exclusion zones would have been dismissed. If they do not amend to move out of those zones now, they will be toast.

So the story is that if you have an application on the list, you have until May 24 to amend to specify digital operation, clean up and complete the full application form, comply with all current interference requirements, and contribute a non-refundable $705 to the U.S. Treasury –  or your application will be out of luck. If you are not on the list, you can still file an application for a new station, since applications outside the 75-mile exclusion zones may be filed at any time under current rules; but any applicants for new stations must protect all applications on the list unless and until the old applications are actually dismissed. Old applicants do not have to protect their own old proposals, so they have more flexibility in what they can put in their amendments.

The Division’s effort to clear out its closets of a bunch of applications that can’t be processed in their current state is understandable. All the listed applications specify analog service, which is so Last Century. The FCC has in effect initiated a partial mandatory transition to digital operation for LPTV stations by deciding that even though existing stations still have no digital deadline, no more construction permits will ever be granted for new analog stations. Moreover, LPTV applications haven’t been real money-makers for the Commission auction-wise – in past LPTV/TV Translator auctions, applicants have demonstrated a reluctance to go beyond the minimum bid, if they showed up to bid at all. So the pending applications do not represent a potential treasure trove in unrealized auction revenue for the FCC.

Faced with these circumstances, the Commission opted to require applicants to re-engineer, amend, and pay a hefty filing fee. The result may well be that many drop out, thinning the herd and increasing the chances for settlements among those who remain in the game.

But if the Division is hoping to get rid of some, possibly most, of these applications, why not just toss them – like the Audio Division did in similar circumstances? One distinction between radio and TV: the Video Division does not face the kind of struggle the Audio Division faces between FM translators and low power FM stations, which are different classes of station with different rules with competing interests. On the video side, LPTV and TV translators are treated as essentially the same service for engineering purposes, with stations having the freedom to switch their category at will. Therefore, it is not necessary to put the brakes on one class of station to preserve spectrum opportunities for the other.

Some of the LPTV applicants have already dismissed their applications, and many are likely not to amend. When the dust settles after May 24, few enough applicants may remain to allow orderly processing, settlements, and grants in rural areas where there is a demand for more network repeaters and local programming services.

Those folks have been permitted to file displacement, minor modification and digital “flash-cut” applications at any time. Some such applications have been filed before the transition end, even though they requested channels that can be used only after a full power station moves off of them. Stations filing early have claimed first-in-time priority, while others have cried “foul”, arguing that first-in-time is not fair unless everyone knows the timing rules.

Applicants were further frustrated when the FCC shipped some applications back and denied pleas to hold them and grant them in time to allow operations to start June 13, while it held others in abeyance, letting them keep their early file numbers. Now that the curtain has finally fallen on full power analog TV, the FCC is ready to deal with applications which were blocked by now-abandoned pre-transition operations.

The Commission is concerned about being fair to potential applicants who elected to wait until the transition to file their applications, for fear that they would be deemed unacceptable. So to give everybody an equal chance, the FCC has announced that any Class A, LPTV or TV translator application which was filed prior to the transition and which was blocked by pre-transition full-service facilities will be deemed to have been filed, and cut-off, as of June 30. That means that any other stations in that universe that want to file for displacement channels, minor mods or digital flash-cuts may do so up to June 30, and all will be given equal priority in time against one another and superiority in time over any MX application filed after June 30.

There are lots of unanswered questions about how the announcement will affect other priorities, such as those given to out-of-core displacement applications seeking in-core channels, Class A vs. LPTV, and digital over analog displacement. And that doesn’t even begin to address the question of whether the Commission can, consistently with the Administrative Procedure Act, change its processing priorities contained in Section 73.3572 of the Rules without a formal rule making. But after all, if the first FCC announcement clarified everything, what would we lawyers do to keep busy?

There are two federal grant programs for the LPTV folks. One, already in progress, is limited to helping pay for converters that pick up digital signals over-the-air and convert them to analog for retransmission. These grants won’t help construct digital facilities, so we can ignore them here. Anyway, that particular grant program will close down on June 12, 2009.

The second program will help the LPTV folks buy digital transmitters. It opens up in July. But don’t count on a huge federal feeding trough. Only rural stations will be eligible for grants, which will come in two classes: one with a $6,000 per-station cap and the other with a $20,000 cap. Actual grants may be less if too many stations apply and the money runs short. Priority will be given to nonprofit entities. A point system will rank all applicants.

To get in the door, you have to meet two basic qualifications. You have to demonstrate that: (a) you held a construction permit or license for an analog station on February 8, 2006; and (b) you transmitted an analog signal on or after that date. Pending applications don’t count, and if you were transmitting a digital signal on that date, you are disqualified. (It’s not clear whether transmitting a digital signal on a companion channel while transmitting analog on the main channel knocks you out of the box.)

Next you have to demonstrate that your station is located in a “rural community” not contained in an incorporated city or town with a population of more than 20,000 persons. This might ordinarily be a deal-killer for many, but NTIA has saved the day by disregarding the size of a station’s community of license and relying instead on the population within the station’s protected analog signal contour (51 dBu for UHF channels). The contour is determined using the sophisticated Longley-Rice method, which supposedly reflects actual service with considerable accuracy. NTIA believes that the “vast majority” of LPTV folks will pass this test, at least if they do not serve a substantial part of an “urbanized area” as designated by the Census Bureau.

And to help applicants determine their population numbers, NTIA has created maps for about 90% of the LPTV folks. When you fill out the on-line application at the NTIA website, the system will supposedly generate a map for you with a population count, and will indicate whether or not you’re eligible. (Tip: Watch out for large yellow areas on the NTIA map, because those are the dreaded urban areas that can disqualify you.)  If you don’t like NTIA’s mapping results, you may submit your own calculations and map.

If you’re still eligible after the map maze, it’s time to calculate your point score. Each station can get up to a total of 30 points, doled out as follows:

• Nonprofit entities get ten points. (Governmental licensees do not qualify as nonprofits.)
• Stations serving a population within the FCC 50/50 Longley-Rice coverage contour of fewer than 10,000 people who are not within an urban area will receive ten points.
• As to the remaining ten points, those depend on the applicant’s “rurality” score. “Rurality”? Yup, “rurality”, a concept which NTIA will implement as follows: “A station whose FCC 50/50 Longley-Rice coverage contour serves an area that does not include an urban area with population greater than 20,000 people will receive ten points. A station whose coverage contours include urban areas with a population greater than 20,000 can receive between six and nine points. Stations receiving fewer than six points are not located in an eligible rural community and thus not eligible to participate in the Upgrade Program.”

Remember that each station is scored separately. The number of stations a particular licensee owns does not help or hurt.

Those fortunate enough to get points for being nonprofit or serving fewer than 10,000 persons get to apply first. Their deadline is July 13, 2009, at 5 p.m. sharp (Eastern time). Your application must be in NTIA’s hands by then, not just dropped in a mailbox. NTIA encourages online filing and warns against using the U.S. mail, because of delivery delays caused by their security screening procedures. 

For everyone else, the deadline for the second round is September 1, 2009.  [Blogmeister note: the preceding sentence has been corrected from the version as originally posted - see Update.]  After NTIA takes care of the first two rounds of filers, they will take additional groups, one month at a time, until the money runs out. (Obviously, filing after the initial deadline that applies to you is a good way to risk losing out.)

A good point score is not a guarantee that you’ll get a grant. NTIA says that it will make grants based on point score, recommendations of its program staff, and geographic distributions. NTIA does not explain the details of non-point factors or whether any subjective judgments will be involved.

Because of the potential problems with paper filing, online electronic filing is definitely the preferred way to go. Once you get the application form figured out online, you make your filing at www.grants.gov. This involves a couple of additional elements.

First, you can’t file any application online at www.grants.gov unless you have pre-registered and have an ID number. Registration takes about five days – so if you’re going to file, don’t put off pre-registering.

Second, you will need to submit a bunch of other federal forms which are required generally for Department of Commerce grants. NTIA has supposedly simplified those other forms, reducing most of them to mere certifications of compliance. Of course, whether or not you really can legitimately and correctly make such certifications is another story entirely.

[NTIA has provided a list of all the necessary components of a complete application. Click here to get to the Notice, and then go to Section III – Application Procedures, Section A – Content and Form of Application Submission (found at the 11th page of the 15-page Notice PDF).]

OK, you have managed to file your application, you are still in one piece, and your “rurality” score is six points or more. So far, so good – but you’re not out of the woods yet.

You can get a grant only for money you have actually spent. You have to pay it out to your equipment vendor first. NTIA will not give you a voucher, letter of credit, or anything else you can use to place an order. If you don’t have a receipt stamped “paid,” you don’t get any NTIA money. Moreover, you must have spent the money on digital transmission facilities after February 8, 2006. If you spent it earlier, you’re out of luck.

You get back the amount you spent, up to a cap. There is no standard fixed grant amount, but there are two grant caps. If you are modifying your analog transmitter, your cap is $6,000 per station. If you are replacing your analog transmitter, the cap is $20,000. Why so little? The caps are based on an assumed 100-watt analog transmitter and 25-watt digital operation. NTIA apparently focused on small rural translators. You can, of course, modify or buy a larger transmitter; but you have to pay the difference if the cap does not cover your costs.

Reimbursable costs are limited to equipment related to the transmitting plant. Studio and production equipment upgrade costs are not eligible for reimbursement. NTIA’s website will have a list of what equipment costs may be claimed.

If you do get a grant, there are more federal forms to fill out, but we will let that challenge wait for another day.

NTIA says that its staff will help stations through the application process. So will we at Fletcher Heald & Hildreth, P.L.C., if you would like us to pilot your ship through the shoals. Just let us know.

However, Class A analog stations that hold a construction permit for a digital companion channel and are receiving analog interference may be able to displace their analog operation to their digital channel, thereby ending up with only one channel - their digital companion channel - but transferring Class A protection to that channel.

Applications will be processed on a first-come, first-served basis, which means that if there is any conflict among applications, the earliest filed will be given priority. Priority is also given to displacements from out-of-core channels to in-core channels. Applications filed before August 4 will be treated as if filed on August 4 for purposes if first-in-time priority.

If you want to apply for a power increase, channel change, move to an in-core channel, or displacement with Class A protection on a new channel, you must file by August 4 to be sure of not losing out to someone who files on or before that date. Consulting engineers are likely to be swamped with requests for assistance; so if you want to file, please call your engineer immediately.