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

Specifically, three station staffers whose positions would have to be terminated if the station were required to keep its analog nightlight service going.  As the licensee explained to the Commission, the substantial cost of that operation was unforeseen and unbudgeted, since the station had been planning to turn off the analog as of February 17.  (You remember February 17 – that was the absolutely final-and-for-sure-don’t-even-think-about-changing-it analog termination date, a date you could take to the bank . . . until, that is, late January, when Congress, um, changed the date – cue Emily Litella – thereby putting both the FCC staff and the TV industry in a bind.) 

Now, suddenly, stations had to deal with substantial unexpected costs during a time of dramatic economic upheaval.  If you’re going to make the monthly analog nut, and advertising revenues are down,other costs will have to be cut.

So the Commission was given the choice: (a) three more weeks of “analog nightlight” service of apparently minimal (if any) utility, or (b) continued employment for three real live people.

There was doubtless not a dry eye in the Commission when they authored their touching and sensitive email response, which we reproduce in its entirety:

Based on the information provided and an FCC map study that shows a significant portion of [the station’s] analog service area that will receive no analog network service, [your] request to be relieved of enhanced nightlight obligations, IS DENIED.

That’s it.  That's the list.  No attempted explanation of the overriding benefits of continued analog service, no acknowledgment of the seemingly sparse concerns about analog demonstrated by the public so far, no effort to justify the result at all.  And not even a suggestion that the enhanced analog nightlight requirement, applicable only to Big Four network affiliates, is both plainly inconsistent with the DTV Delay Act and of dubious constitutionality.

And not a hint of recognition that, by insisting on continued service, the Commission was putting three more people on the unemployment lines.

Referring (in an admittedly different context) to the collective hysteria that afflicted colonial Salem, Justice Louis Brandeis once remarked that “men feared witches and burnt women.”  Of course, no one is dying here, so the witch trials are by no means a perfectly apt analogy. But it’s still hard to miss the regrettable parallel: significant harm inflicted on innocent citizens by a government in the throes of an irrational fear of a purely imaginary evil.

The FCC and the Congress, all fearing some imagined DTV catastrophe (and, perhaps more importantly, the imagined political repercussions of such an imagined catastrophe), have pressed television operators into increasingly ridiculous measures supposedly designed to avert disaster.  (Does anyone seriously doubt that the incessant DTV “educational” announcements, pounded into TV viewers’ consciousness over and over and over for the past year, have lost any effectiveness they might once have had?  Does anyone seriously think that, by increasing the number of such announcements, their efficacy might be restored?)

Like the townspeople indulging the emperor’s imaginary new clothes, we can all indulge the Commission’s fixation on the supposed salutary effects of DTV education and nightlight service and the like.  In fact, we have to, since the Commission is driving the bus and, with no way to grab the steering wheel, the rest of us are along for the ride, hoping to get to our destination in one piece.

But when the FCC’s fixation crashes into reality, leaving real people jobless in the Real World, somebody really ought to say something.

There is some basis to hope that the Commission may snap itself out of its DTV trance if confronted with at least a glimpse of reality.  Recently, Acting Chairman Copps was quoted in a Bloomberg report as being open to revisiting newspaper-broadcast ownership restrictions because those restrictions don’t meet “the needs of the industry, the economy or the public.”  But wait.  Isn’t that the same Copps who, just 15 months ago, expressed outrage at even a modest and limited relaxation of those same rules?  According to Copps (circa December, 2007), that relaxation “would make George Orwell proud”.  The Commission was “shed[ding] crocodile tears for the financial plight of newspapers – yet the truth is that newspaper profits are about double the S&P 500 average.” It appears that, despite his derisive tone just months ago, he may have had an epiphany.

Such an epiphany is, of course, welcome, particularly when it bespeaks a governmental official mature, or wise, or simply flexible enough not to let himself get trapped by his own rhetoric. But why now?  Perhaps it was the recent, Real World failure of several major newspapers, coupled with reports of others teetering on the brink.  Confronted with actuality – as opposed to facile, self-serving rhetoric – could it be that Copps has recognized that his earlier posturing was misguided?  Think Ebenezer Scrooge, a character transformed when confronted by the real and plainly undesirable consequences of his conduct.

If it’s happening in the cross-ownership context, it could happen on the DTV side as well. Let’s hope that the Commission comes out of its DTV education trance before it does any greater harm – to companies and real individuals – than it already has.

The most pressing new requirement is that every station that has not already made the transition to digital-only operation must file a notification – the Analog Service Termination Notice (ASTN) – with the Commission by next Tuesday, March 17 at 5:30 p.m. EDT. The ASTN must include the date and approximate time (by daypart – i.e., early morning, (12 M-6:00 a.m.) morning (6:01 a.m.-12 N), afternoon (12:01 p.m.-6:00 p.m.), evening (6:01 p.m.-11:59 p.m.)) on which the station anticipates making the transition. These notices will be binding, and absent major equipment failure or other unforeseen catastrophe, stations will be held to the date specified in their notices. Stations which fail to file a timely ASTN will be deemed to have elected to continue analog operation until June 12.

(One exception: If a station changes its mind and decides to keep its analog operation going until June 12 after all, it may do so, but will be required to notify the Commission no less than five days before its originally-specified turn-off date, and it must air notices to viewers – at least four times daily, once in primetime – of the change in plans, over the five days prior to and including the originally-specified date.)

The earliest date that any commercial station, and most noncommercial stations, may pull the analog plug is April 16, 2009. Noncommercial educational stations that can certify that continuing operation would create a significant financial hardship, however, may be able to turn off as early as March 27. The FCC’s theory here is that noncommercial stations often face greater budget issues. 

Any station looking to terminate analog service prior to June 12 will have to air at least four viewer notifications a day (at least one in primetime) for at least 30 days prior to the termination. (NCE stations shutting down before April 16 will still have to run a total of 120 such announcements, distributed evenly through the period leading up to the termination.) These notices, which are in addition to the DTV education announcements which have been required for the past year or so already, must contain:

• the station’s call sign and community of license;
• the station’s plan to end analog service prior to June 12;
• the date of the planned termination;
• what viewers can do to continue to receive the station, i.e., how and when the station’s digital signal can be received;
• information about the availability of digital-to-analog converter boxes in the service area;
• the street address, email address (if available), and phone number of the station where viewers can register comments or request information. That number – which will also be used to receive calls forwarded from the FCC’s Call Center – is expected to be staffed by knowledgeable people who can help consumers with local reception issues and other engineering issues. The Commission has indicated that the people staffing the local telephone help line may be provided by the station, a group of stations, or a third party such as the state broadcasters’ association.;
• “service loss” information, if the station’s DTV signal will reach less than 98% of the population reached by its analog signal.

These notice requirements apply to all stations seeking to terminate analog operation prior to June 12. But there are additional gotchas for major network affiliates who fall in that category.

A major network affiliate must certify on its ASTN that either: (a) at least 90 percent of the people within its service area will continue to received full analog service from an affiliate of another major network through June 12; or (b) at least 90 percent of its viewers will receive “enhanced nightlight service,” or some combination of enhanced nightlight service and continued analog programming service, and that the station will comply with the other public interest requirements. The stations which will supply the on-going analog service must be specifically identified in the ASTN.

For enhanced nightlight service, stations must provide at a minimum DTV educational information and news and public affairs programming. For all stations, regardless of location or audience composition, the DTV transition information must be aired in both English and Spanish, and must have both captioning and an aural element so that both the vision and hearing-impaired may receive the information. In order to offset some of the cost, however, commercial announcements will be allowed.   The Commission indicated that a station may rely on another station in the market, but each individual broadcaster will nonetheless remain responsible for ensuring that the service is provided. The Commission has not indicated what would happen if the station upon which another station is relying suddenly has its transmitter break down.

So early termination now includes significantly increased notice requirements and substantial extra burdens for net affiliates. But wait, there’s more.

The Commission is requiring that early-terminating major network affiliates must also provide at least one “walk-in help center”. That center can be organized and operated jointly with other stations or local businesses or organizations, but each station will be independently responsible for making sure that the center meets the FCC’s specs. And those specs are detailed. Each walk-in center must include a range of very specific equipment and capabilities to assist the public in coping with the DTV transition. Oh yeah, the walk-in center must be open seven days a week, and there must be at least one broadcast station employee on-site at all times during operating hours. Each station must provide the Commission with the address, phone number and operating hours of its walk-in help center, along with the name and phone number of the station’s “point of contact” for DTV transition issues.

Stations not transitioning until June 12 are relieved of the additional requirements specified for early-exiting network affiliates. They still have additional burdens imposed, however, as the Commission has expanded the types of information now required to be conveyed in the DTV consumer education announcements and has added additional notices that must be aired. These new requirements will go into effect on April 1. They include the following:

• All stations must provide viewers with information about antennas and signal reception. If the station is changing from the VHF to the UHF signal band, or vice versa, it must provide information about the possible need for a change of antenna.
• All stations must remind viewers that they will periodically need to use the rescan function on their digital television sets and converter boxes to pick up stations in the area.
• All stations must announce the location and operating hours of walk-in DTV help centers in the market area, the FCC Call Center telephone number and TTY number, and the number the station has designated for receiving consumer calls.
• Stations that will experience a loss of two percent or greater of the population served within its Grade B service area, whether or not offset by population gains, must air service loss notices, which must describe the approximate geographic areas that will lose service. These notices are required in addition to the other consumer education notices.

Each of these new pieces of information must be included in a notice at least once a day, must air in primetime at least three times a week, and must be at least 15 seconds long.

The Commission also has changed the 100-Day Countdown Clock for those stations that chose Option 2. It will now be a 60-day clock, and it will be geared to each station’s own analog termination date. This requirement does not become effective until April 1. As of that date, all stations will be required to run a countdown to their own respective termination dates, starting on the latter of April 1 or the 60th day prior to termination.

Finally, in the area of additional notices, broadcasters that chose either Option 2 or Option 3 will need to air a new 30-minute informational video at least one day before they transition. This video must be up-to-date and also must reference local issues. This new mandate will impose significantly greater burdens, as it will not be possible for stations in various markets all to air the same program in its entirety.

One ray of sunshine, however, is that the Commission has eliminated the requirement that most stations that have already made the transition continue the consumer education announcements. Someone finally realized that the only people who could see these announcements were the ones who no longer needed help. The only exception is for stations that have not built out their full, authorized DTV facilities. These stations may not cease the announcements until their final facilities are built.

Lurking just below the surface of the Commission’s new and even more elaborate constraints on early transition is the fact that even the FCC acknowledges that some early terminations may be beyond the licensee’s, and the FCC’s, control. The Commission repeatedly alludes to the possibility that “equipment failure, natural disaster, or other unforeseeable emergency” may lead to pre-June 12 analog terminations notwithstanding any supposedly binding ASTNs or related obligations. That possibility introduces a range of unknowns and unknowables into the mix for the next several months.

Again, the Commission’s staff is to be applauded for their ability to deal with a truly daunting task expeditiously. This is not to say that the latest order is a model of persuasion. To the contrary, aspects of it – particularly its effort to justify new burdens over and above those imposed in the Third Period Review, in direct contravention of Congress’s explicit direction – are appallingly disingenuous. But, as previous posters have observed, the exigent circumstances here preclude dispassionate consideration of legalities. Whether or not the Commission has the authority to do what it’s doing, the time frames here are so short that, by the time anyone could get into court, June 12 will have come and gone.

Ideally, this most recent order will be the last of the zigs – or are they zags? – in the course of the DTV transition, as the regulatory bus lurches back and forth, pushing fitfully toward June 12. But you never know.

·    Binding notice re termination date – Stations which have not yet terminated analog operation will be required to file a notice, no later than March 17, 2009, advising the Commission of the specific date on which they intend to take their analogs dark. This notice will constitute a binding obligation on the station’s part to turn off the analog as of the date specified in the notice. Failure to file a notice by March 17 will be deemed to mean that the station will continue analog operation until June 12 – and, again, the station will be bound to that date. Once March 17 comes and goes and each station’s termination date has been established, the only circumstances that will permit an earlier termination (or substantial reduction) in analog service will be “equipment failure, nature disaster or other unforeseeable emergency”.

·    Next Form 387 status reports due April 16 – Stations which have not already terminated analog service will be required to file an updated Form 387 (DTV Transition Status Report) by April 16, 2009 to reflect its chosen termination date.

·    Analog nightlight program extended through July 12, 2009 – The analog nightlight program which the Commission adopted in January has been extended to July 12 (i.e., 30 days after the national transition date). Note that this is separate from the “enhanced nightlight” service which the Commission has endorsed in connection with some early termination situations. (“Enhanced nightlight” service involves provision of analog service including DTV transition and emergency information together with local news and public affairs programming, available in English and Spanish and accessible to the disabled.)

·    Consumer education requirements extended – For stations choosing the consumer education requirements under Option 1, the obligation to remain at the PSA equivalent of DEFCON One continues, even though those stations have already been pumping out three PSAs and three crawls per day-quarter for some time now. Option One stations have to continue at that pace through June 30. The precise content of the announcements might change, however, depending on the FCC’s action with respect to proposed rule changes. Option 2 stations must re-set their 100-day countdown clock and start a whole new series of on-screen countdowns. Again, the content of the countdown notices may change as the FCC gives further thought to what they should say.

·    Form 388 reporting requirement extended – Since the requirement to report DTV consumer education efforts was originally set to wrap up at the end of the first quarter of 2009 (consistent with a February national transition date), the Commission has extended that requirement to encompass the extended transition period. This means that stations will be required to file one more such report than was previously the case.

Proposed rule changes

The Commission seeks comment on a number of transition-related proposals. The FCC’s sincerity in doing so may legitimately be questioned, though, since the comment period provided for those comments is limited to five (count ‘em, five) days following publication of the SRONPRM in the Federal Register – oh yeah, and no reply comments will be permitted. In any event, some of the proposals advanced by the Commission include:

·    New early termination drill  – In order to assure the public at least 30 days’ notice prior to termination, and in light of the March 17, 2009, deadline for determining proposed termination dates, the Commission proposes not to let any station shut down analog operation prior to April 16, 2009. No prior FCC authority is proposed to be required to terminate analog operations after that date as long as the shut-down date is specified in the March 17 notice, although major network affiliates would be required to certify, in their notices, that at least 90% of their analog viewers will continue to receive “some analog service (full service or enhance nightlight)” until June 12, 2009, and that they will comply with other on-going public interest obligations proposed in the SRONPRM (see below). Network affiliates proposing early termination would be required to identify, in that certification, the stations that would continue to provide analog service.

·    Public interest obligations for early-terminating major network affiliates – Major network affiliates proposing early termination would be required to: (a) provide on-air crawls (which would include the FCC’s toll-free number – 1-888-CALLFCC) prior to termination; (b) ensure on-air educational information, both pre- and post-transition, including information on converter box installation and areas where service may be lost as a result of the transition; and (c) participate in “market outreach” activities, either alone or in conjunction with other stations in the market, such activities to include toll-free phone assistance and engineering support for consumers, consumer walk-in centers, coordination and cooperation with local community resources. Any network affiliate wishing to terminate early but unable to make the required certifications would be able to offer a demonstration of exigent circumstances necessitating early shut-down – but the Commission emphasizes that such stations would bear a “heavy burden”, and the odds appear heavily weighted against the grant of any such showings.

Other odds and ends – The Commission also wonders, inter alia:

·       Should the content of its 100-day countdown requirement need to be adjusted in light of the extended transition date and the possibility that stations in a given market may cease analog operation on different dates? Should the 100-day countdown reflect the broadcasting station’s own termination date or the June 12 national date, or should each station be required to provide separate 100-day countdowns? 

·       Should stations which have already broadcast the required 30-minute informational video about the transition be required to provide another “up-to-date” 30-minute video? The Commission seems to be leaning in that direction, as it also asks whether such an updated video should be required to (a) include the termination dates of other stations in the market and (b) specify changes in the broadcasting station’s service area.

·       Should stations be required to provide additional regularly-scheduled PSAs advising of “changes in the geographic area or population covered by the station” if two percent or more of the station’s analog viewers are predicted to lose service as a result of the transition. (Note that this two percent would be calculated strictly on the basis of existing viewers losing signal; it would not include any new viewers that the station might pick up with its digital signal.) Again, it appears that the FCC has already pretty much decided that this is the way to go, since it proposes relatively detailed notice requirements (“geographically specific information” detailing anticipated loss areas, information describing areas where the analog signal is “generally sufficient” for indoor antenna reception but where “it is likely” that an outdoor antenna will be necessary.)

The SRONPRM appears to erect (or proposes to erect) considerably more obstacles to early analog termination than had been imposed by the Third Periodic Report. That’s interesting, because the DTV Delay Act specifically provides that “[n]othing in this Act” is intended to prevent early termination of analog service “so long as such prior termination is conducted in accordance with the . . . requirements in effect on the date of enactment of this Act, including the flexible procedures established in the Matter of Third Periodic Review”. So the Act seems to say that, as long as a station complies with the Third Periodic standards, that should be that.

The Commission tries to dance around that language, finding some verbiage in another section of the Act to cling to in support of the SRONPRM’s departure from the Third Periodic standards. But it’s hard to take the FCC’s self-serving reading seriously when Congress carefully emphasized that “nothing” in the DTV Delay Act was supposed to interfere with early termination undertaken consistently with the Third Periodic. So regardless of anything else Congress may have said anywhere else in the Act, Congress was clear that “nothing” else in the Act was supposed to preclude such early termination. 

This looks like a ready-made appeal point to anyone eager to run to court. But, to continue the Jack Bauer analogy noted in an earlier post, when Jack has hijacked your car and is driving it, and you, at breakneck speed down some dark and unfamiliar terrain in the middle of nowhere, you’re not really in a position to try to get your situation in front of a judge. Instead, you may just have to go along for the ride, wherever it may go and however long it may last.

The SRONPRM is but the latest demonstration of the Commission’s valiant efforts to comply with the extraordinary practical problems dumped on it by Congress’s later-than-last-minute extension of the national transition date. The fact that the FCC’s staff has been forced to work through holiday weekends and late into the night (as evidenced by, for example, its post-quitting time orders the past two Fridays) is a testament to the staff’s diligence – but it also gives rise to potential problems. As we noted in an earlier post here, the Commission’s damn-the-torpedoes-full-speed-ahead approach may be commendable, but it opens the real possibility of unconstitutional actions. The SRONPRM does nothing to dispel those concerns.

Since more than a third of the nation’s full power TV stations have now terminated their analog service, a nationwide total of 9,000 callers seems relatively small, particularly in view of the doom and gloom predictions which led up to the transition. (Of course, more calls presumably were made to various local call-in centers established by local television licensees, but given the extensive publicity accorded to the FCC’s call center, the 9,000 caller figure to that center seems quite low, all things considered.)

FCC staff apparently sees no problem with pre-Transition non-broadcast 700 MHz licensing

As we all know, the final DTV transition date has been put off until June 12, 2009. But on February 20, 2009, the Wireless Telecommunications Bureau granted a number of 700 MHz band licenses, with the licenses effective on – you guessed it – February 20, 2009. Since the 700 MHz band is currently occupied by a number of broadcast television licensees who are not obligated to abandon the band for another 120 days or so, it appears that, at least for that limited period of time, the potential for conflicting uses of the spectrum exists. Of course, the new 700 MHz users may not – and probably won’t – be in a practical position to use the spectrum before June 12, so this will probably not be a real problem. Still, it seems odd that the Commission would hand the keys to the spectrum over to the new tenant before the old tenant has vacated the premises.

First and foremost, the extensive, and largely effective, efforts made by the FCC’s staff to play the truly horrendous hand dealt them by Congress are a matter of record. You don’t need a transparently self-laudatory public notice to prove that the Commission’s staff has worked long and hard and successfully.

And second, the blame game as it is usually played depends not on demonstrable facts but on the interplay of political interests often divorced from the facts. In that sense, no public notice will be necessary because no public notice will do any good: if the Other Side is going to blame you for messing up, they’re going to do it whether or not you have issued a public notice, and whether or not you did in fact mess up.

Moreover, before the Commission gets too carried away with itself, we all may want to reflect on some of the measures taken in the February 5-13 flurry of activities aimed, apparently, at discouraging stations from turning off their analogs on February 17. The FCC picked on certain types of stations (network affiliates), making it significantly more difficult for them to abandon analog operation before June 12. The basis for picking on them? The unsupported claim that network affiliates are the “primary source” of local news and “public affairs” programming. The Commission’s ploy certainly looks unconstitutional, since it was admittedly (and impermissibly) content-based, not to mention factually unsupported (as far as we can tell).

Of course, when Jack Bauer is taking care of business on our behalf, neither he nor his victims have much opportunity to examine the correctness of their respective situations. With the clock ticking ominously down, there is no time to analyze constitutional niceties. So it is here. To paraphrase the indomitable Mr. Bauer, hundreds of thousands of television viewers’ access to TV is at stake! There’s no time to worry about legality!

So we can and should salute the long-suffering staff of the Media Bureau, which really has done a fine job in getting the transition to this point. But, much as we also salute Jack Bauer’s success even while we shake our heads at his means, we should all be mindful that the Commission has been able to achieve its most recent DTV successes – the very ones about which the latest Public Notice crows – through means which were at best constitutionally suspect. 

We can and should hope that this does not become a routine practice at the Commission.

The FCC had identified 106 stations in 41 markets as being "particularly problematic," because all four major commercial network affiliates planned to turn off their analog signals.  That would presumably leave the public without access to local news and information on any analog channel, since the FCC seems to assume that in most cases, the four major network affiliates are the only ones that have local newscasts.  After some arm twisting, the FCC persuaded 43 stations to stay on the air analog, leaving only 20 markets in jeopardy.  Some of the other stations will broadcast announcements on their analog channel about how to receive DTV signals ("nightlight"); and in markets where all four major network affiliates were ready to flicker out, at least one will keep the analog lamp lit for local newscasts and emergency messages ("enhanced nightlight").

The FCC has targeted 72 markets where one or more of the top four commercial network affiliates will terminate analog operation.  They are dispatching an army of staffers (suitably attired in flak gear?) to  these markets to visit stores selling DTV converter boxes, to assist in DTV walk-in centers where consumers can get hands-on assistance before they tear their hair out trying to hook up boxes and antennas, and to reach out to at risk groups.  Yes, Virginia, there is a Santa Claus to help your grandmother with her TV.  There will be 2,506 staffers manning FCC telephones at 1-888-CALL-FCC, and that number will be able to link callers to 1,759 additional agents through industry "partners."  Will a real person answer the phone faster than your cable company answers?  If Las Vegas is not taking bets on that question, they are missing an opportunity.

So here we go!  Tomorrow is the witching hour.  If all else fails, the FCC suggests their latest:  http://www.dtv.gov/fixreception.html, where you can learn how to buy a converter box, get a coupon to help pay for the box, install a box, or upgrade your antenna.  There is no reference to a recent finding we saw posted on the Web that a coat hanger worked better than many retail indoor antennas.

For those stations whose post-transition digital facilities will differ from their pre-transition facilities, the authority to operate those post-transition facilities is now not valid until “12:00 a.m.” on June 13. (Note that the term “12:00 a.m.” is something of an ambiguity, but we presume it means 12:00:01 a.m. on June 13.) Stations that believe they can use their post-transition facilities prior to June 13 without causing interference must request special temporary authority (STA) and make an engineering showing, with an electronic filing through the FCC’s CDBS system. These stations may not commence authority with post-transition facilities until an STA has been granted.

Stations that (a) notified the FCC of their intent to shut down analog operation February 17 but (b) were listed on the FCC’s February 11 public notice as not being permitted to shut down may now not terminate analog service until June 12 unless (1) they made certain certifications to the FCC by 6:00 p.m. Eastern time on February 13 (i.e., about 15 minutes before the FCC’s order was released) regarding the availability of analog service and DTV educational information, in which case the right to shut down on February 17 is  automatic, or (2) they filed a hardship showing  based on unavoidable loss of analog site or extreme economic hardship and have received FCC approval before they shut down analog service. The FCC’s Media Bureau will have delegated authority to act on hardship requests.

Later in the evening on February 13 (the Commission’s staff was obviously busy), the FCC said that it had received responses from all 106 stations on the February 11 list, and it kept its own night lights burning to compile those responses. An even half filed the required certifications and may pull their analog switch on the 17. Forty-three stations said they will continue analog operation. That leaves ten stations which pleaded hardship. The FCC will review their showings and will let them know their fate “prior to February 17^th.”

Finally, the FCC has relented from its requirement that stations maintaining “Nightlight” analog service after February 17 (i.e., analog service solely for emergency messages and DTV educational information) broadcast all such information in both English and Spanish. Since DTV educational information in both languages is available from at least the National Association of Broadcasters, if not elsewhere, educational information must still be broadcast in both languages. However, stations without translation capability will not be required to broadcast emergency information in Spanish, although they are encouraged to do so. Emergency information must still be visibly displayed for viewers with impaired hearing.

For those nigglers who may be concerned about the FCC’s legal authority to impose filing requirements and change its rules seven days a week without the usual advance notice and opportunity to comment, the FCC has declared that the Administrative Procedure Act’s rules of the road do not apply here. In the FCC’s view, the DTV Delay Act instructed the FCC to get a move on it, “[n]otwithstanding any other provision of law.” So the night lights are burning at the FCC, as TV stations prepare for their own Nightlight operation; and sweethearts anticipating their Valentines tonight or tomorrow morning may have to cool their heels for a bit.

The Commission provides two ways to get the early shut-down waiver back. The first way requires the station to certify its compliance with eight “measures”. Those “measures” are:

• Ensure that at least one station that is currently providing analog service to an area within the DMA that will no longer receive analog service after February 17, 2009 will continue broadcasting an analog signal providing, at a minimum, DTV transition and emergency information, as well as local news and public affairs programming (“enhanced nightlight” service) for at least 60 days following February 17, 2009. The local news, public affairs, or other programming may include commercial advertising. Note that the “enhanced nightlight” service mentioned here goes well beyond the plain old “nightlight” service previously authorized by the Commission. Since this “enhanced” version will air during the pre-transition, it must include “at a minimum”, local news and public affairs in addition to the standard “nightlight” fare of DTV transition and emergency information.
• Ensure that available on-air educational information – both before and after February 17 – will include demonstrations of converter box installations, antenna setups, and other helpful information.
• Ensure that enhanced nightlight service concerning the DTV transition or emergency information will be provided in Spanish and English and accessible to the disability community.  (Since silent scrolls or slates do not provide information to the visually impaired, broadcast notices must also have an aural component, as well as being closed- or open-captioned).
• Ensure that the DTV educational information, both on-air and through other means, will provide information describing areas that may be losing over-the-air signal coverage temporarily or permanently as the station transitions to digital-only broadcasting. Such information may include detailed maps, listings of affected communities, and instructions on how to assess what type of antenna may be necessary to retain or regain the station’s digital signal, as well as identifying specific locations that will not be able to receive a digital signal regardless of antenna.
• Each station individually or collectively in the market commits to assisting viewers by providing local or toll-free telephone assistance, including engineering support. Such assistance may be provided jointly with other stations, organizations, and businesses in the area.
• Each station alone or together with other stations or local businesses and organizations in the market will provide a location and staff for a consumer “walk-in” center to assist consumers with applying for coupons and obtaining converter boxes, to demonstrate how to install converter boxes, to provide maps and lists of communities that may be affected by coverage issues, and to serve as a redistribution point for consumers who are willing to donate coupons, converter boxes, televisions and for those in need of these items.
• Each station, individually, is complying with the obligation established in the February 5th Public Notice to broadcast a crawl on their analog channel regarding the station’s termination of analog service, for the seven day period from February 10 through the termination of the station’s analog signal on February 17. For the first five days, the crawl must be aired for 5 minutes of every hour of the station’s analog broadcast day, including during primetime.   For the final two days, the crawl must be aired for 10 minutes of every hour of the station’s analog broadcast day, including during primetime. Each station will include in the crawl the FCC toll-free number for our Call Center (1-888-CALLFCC, 1-888-225-5322) beginning as soon as possible following the release of this Public Notice. 
• Each station will consider and is encouraged to coordinate with and use community resources to provide consumer outreach and support, including in-home assistance.

The second way to get the waiver back is to demonstrate “extraordinary, exigent circumstances, such as the unavoidable loss of their analog site or extreme economic hardship”, that require early analog shut-down. Your showing cannot exceed five pages (not including attachments). But before you get all excited about this approach, the FCC has a word of advice: “We do not anticipate that many stations will be able to meet the high burden applicable to this showing.” Well, then.

The certification process may seem simple, since all it requires at this point is the submission (through CDBS – using the “Silent STA/Notice of Suspension” option on the “Additional Non-form Filings” menu) of a statement that the “measures” are being and will continue to be met, either by your station or by some other station(s) in the market. The trouble is that the Commission ominously observes that it “reserves the right to take appropriate action against stations that certify they will meet the conditions, fail to do so and nevertheless go off the air on February 17, 2009.” 

In other words, Something Bad could happen to you if it turns out that all of the “measures” don’t get satisfied. And while the public notice doesn’t say so, we would not be surprised if the FCC were to send out letters to stations at some point after all is said and done requiring them to certify that all of the “measures” were, in fact, complied with. In other words, it is possible, if not likely, that the FCC will be following up on these certifications to confirm that the hoops were, in fact, jumped through.

The risk here may not be small. The burden imposed by some of the “measures” is not slight by any means. And since satisfaction of the “measures” is likely (if not certain) to depend on the conduct of one or more other stations in the market over which the certifying station ultimately has no control, the station doing the certifying may not be in a position to guarantee such satisfaction. Stations should carefully consider whether the desirability of turning off early really justifies these burdens and risks.

Still, the early shut-down waiver will be automatically restored for any station making the “eight measure” certification.

As with other aspects of the FCC’s endgame efforts to bring the DTV transition to a close, serious legal questions surround this latest certification requirement. For example, the Commission has singled out the 123 stations based, apparently, on the content of their programming, a consideration which raises major First Amendment concerns. And even if such a culling process were plainly permissible (which we doubt), the fact is that the FCC has no actual basis for assessing the availability of types of programming (e.g., local news, public affairs) apparently relied on in that culling process.

But the question is whether, in the long run, it makes sense to litigate these issues, rather than simply cave to the agency in view of peculiar circumstances. Each TV licensee – and particularly those 123 stations on the FCC’s list – should give thought to this before finally deciding on a course of action.

According to the notice, the waiver might get yanked “if, for example, [the Commission] finds that all or most of the stations in a market will terminate their analog service on February 17, and that the market is one in which many viewers are unprepared for the transition or at risk if the transition proceeds.” Along with the notice the FCC issued two lists identifying (a) all 680+ stations that have either already turned off or have given notice of intent to terminate analog operation by February 17 and (b) all U.S. TV stations, grouped by DMA, with those planning early termination highlighted. So now we all know the markets which will go entirely analog-free as of 2/17, and we know the markets where “most” (by which the Commission presumably means more than half) of the analog service will be shut off. 

But we don’t know whether any of those markets include “many” “unprepared” or “at risk” viewers. Nor do we have a clue how the FCC plans to make that call.

But once the staff has identified such situations, it

may require affected stations to submit additional information to explain and justify how their early termination advances the public interest. Such additional information can include significant economic, technical, contractual and other business reasons that support termination on February 17, and efforts being made to protect consumers from service disruptions. The Commission will scrutinize such information closely in light of the important interests at stake to determine whether a compelling case has been made.

Reality check: the Commission plans to inventory the readiness of viewers in markets nationwide and then notify possibly affected stations, and then those stations will pull together and submit showings of the “significant economic, technical, contractual and other business reasons” supporting early shut-down, and then the staff will “scrutinize” those showings, and then the staff might decide that the early-shut-down waiver should be somehow “limit[ed]” or “reconsider[ed]”. And all this is supposed to happen in seven days (i.e., February 11-17).

Oh, did we mention that February 16 is a Federal holiday? So of the seven available days, only four are business days.

Good luck with that.

It’s possible, perhaps likely, that in floating out the possibility of pulling the plug on the early-shut-down waivers, the FCC might just be blowing kisses in the direction of Congress – a For Display Only option which will not really be invoked, but which will make Congress feel good about things. We will know for sure in about a week. (From a practical perspective, it’s hard to imagine that the Commission believes that, after February 17, it will be able to order stations to resume analog service – but you never can tell.)

Meanwhile, the good folks at the NAB have assembled a tentative “pre-shutoff checklist” for stations planning to pull the plug market-wide. Their list contains a number of very useful (and highly advisable) suggestions, including:

• select a short-term “market manager” who can serve as a liaison with the FCC and who can organize and coordinate responses to situations as they arise;
• make sure that at least one (and ideally more, if not all) of the stations in the market is providing “nightlight” service;
• organize and coordinate local call centers to handle viewer questions;
• provide continued on-air coverage of the DTV transition, particularly immediately before and (for stations continuing in analog) after the shut-down;
• monitor public reaction and readiness (through contacts with retailers, local civic and public safety organizations and the like)

Stations planning to take their analogs down next week would be smart to take the NAB’s advice on all these points.

Meanwhile, back at Congress, at least one version of the stimulus bill includes a provision for more money for DTV converter boxes.

Check back to CommLawBlog.com for updates.

• Many stations looking to turn off their analog as of February 17 have already begun airing termination notification announcements over the 30-day run-up to the Big Day.  The conventional wisdom has been that the FCC would require at least 120 such announcements to be aired.  And sure enough, the Public Notice imposes precisely that requirement -- except the 120 announcements have got to be compressed into the time remaining (i.e., between now and 2/17) if no announcements have yet been broadcast.    But now, in addition to those 120 notification announcements that stations may (or may not) have been running, those stations must also broadcast – if technically feasible – an additional crawl on the analog channel regarding the station's termination of analog service. This must be run from February 11-17, as follows: from February 11-15 (beginning at 12:01 a.m. on 2/11 through 11:59 p.m. on 2/15), the crawl must be aired for five minutes of every hour of the station's analog broadcast day, including primetime. For the final two days (February 16-17) the crawl must be aired for ten minutes of every hour of the station's analog broadcast day, including primetime.  The crawls must contain the same information in the PSA (i.e., “On February 17, Station (call sign) intends to cease analog broadcasting. This termination is prior to the June 12, 2009 final national digital transition date. Viewers who rely on over-the-air service will lose reception of our programming unless they use a DTV receiver or converter box. Converter boxes can be purchased from electronics retailers and online. If you subscribe to cable or satellite service, you should not lose reception. For more information, please go to www.dtv2009.gov or contact [call sign] at [street address], [email address, if available], or [phone number]).”  If you do not have the ability to air crawls, you must instead air this information in an alternative format for a comparable duration.
• Stations terminating analog service on February 17 are encouraged to continue to broadcast emergency and DTV consumer education information on their analog channel after termination.  This can be done by using a slate describing the transition and providing sources for information about actions viewers should take to retain television service.  The FCC urges stations to do this for at least two weeks following termination of normal analog programming.  Stations can continue to provide this slate of information or emergency information up to 30 days after terminating analog service.  Stations intending to provide this kind of post-termination service need to advise the Commission of that intention in the analog termination notice which must be filed.
• Stations must also file updated Transition Status Reports (FCC Form 387) indicating the now-early termination of analog service on February 17.

Check back with CommLawBlog for updates as the Commission continues to grapple with the impact of the Congressional extension of the DTV transition deadline.