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.

• 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.

First, you need to file with the FCC a suspension of operations notice with the FCC through its CDBS online filing system (check with your favorite FCC counsel for assistance) to notify the FCC that you will cease transmitting in analog as of February 17.

Second, you need to immediately begin running notifications on both your analog and digital signal that contains the following information:

1. The station’s call sign and community of license;
2. The fact that the station is planning to or has reduced or terminated its analog   operations before the transition date;
3. The date of the planned reduction or termination;
4. What viewers can do to continue to receive the station (like how to receive the digital signal);
5. Information about the availability of digital-to-analog converter boxes in the station’s service area; and
6. The street address, email address (if there is one) and phone number of the station where viewers may register comments or requests for information.

Note – this viewer notification requirement is in addition to and separate from the DTV Education Initiative required announcements.

You must run 120 of these announcements between the time you file your notification with the FCC and the date you plan on terminating analog service.  In addition, at least 30 of the 120 announcements must be in prime time.

One final important piece. If your post-transition DTV channel is different from your pre-transition DTV channel you may have to continue to operate on your pre-transition channel until your post-transition channel clears (for example, the analog station in the neighboring market that must shut down before you can begin operating your post-transition channel).

And one final, final important piece. If you terminate your analog and your pre-transition DTV coverage is significantly smaller than your analog coverage, you may be losing viewers entirely and the FCC would frown on the loss of coverage.  So make sure your coverage areas are comparable before terminating analog service.

So-called “nightlight” analog transmissions may not cause interference to digital broadcasting. (If interference does occur, operating authority may be rescinded.) The FCC has come up with a list of 826 full power stations that it believes will not cause interference, based on simplified engineering calculations. These stations may undertake nightlight operations without further FCC authority, but they must notify the FCC by filing a Legal STA through the FCC’s online CDBS application system. Those unduly intimidated by CDBS may send an e-mail to nightlight@fcc.gov – BUT e-mail notifications must include specific information required by the FCC’s Order. Legal STA requests and e-mailed notices must be submitted by February 10. Participation in the program is not mandatory, but all eligible stations are “strongly” encouraged to participate for at least the first two weeks after February 18.

Stations not on the list may also participate, but they must file an Engineering STA request through CDBS showing that they will not cause interference. They may propose power reductions or other techniques for avoiding interference. Alternatively, they may reach a private agreement with a station to which they may cause interference. Absent a private agreement, analog operations may not cause more than 0.1% new interference to any DTV station, except that in a DMA where no station meets the 0.1% test, a station may propose up to 0.5% new interference. Stations not on the pre-approved list that seek engineering STAs must file by February 3.

Analog broadcasts are limited to emergency information (including EAS alerts) and educational information about the DTV transition, including what viewers can and should do to continue to receive TV service.  DTV education information must be broadcast in both English and Spanish and must be closed or open captioned for hearing impaired viewers and include aural material for visually impaired persons. A loop that repeats material is acceptable, and the NAB plans to offer a brief educational video that stations may use. Hourly station identification is required. Sponsorship messages may be broadcast to defray operating costs, as long as they are “very brief” and include appropriate sponsorship identification. Continuous display of a sponsor’s corporate logo or “bug” is forbidden. Nightlight stations must transmit during the same hours of operation in effect prior February 18. When emergency information is being broadcast, analog stations may rebroadcast their digital programming, including any advertising.

If you want to keep your analog light burning for a while, don’t forget the February 3 and 10 filing deadlines. You don’t have to do it, although we anticipate that the FCC will twist arms pretty hard to make sure that at least one station in each DMA participates.

Interviewed at the International Consumer Electronics Show in Las Vegas on Saturday, January 10, Martin challenged the Conventional Wisdom Du Jour – i.e., that delay in the transition is totally necessary – by suggesting that an extension of the deadline would cause confusion among viewers. His unsurprising point was that, since the TV industry has, at the insistence of the FCC, been pummeling audiences for months with the word that February 17 is THE Transition D-Day, viewers might be puzzled if, at this late date, that deadline turned out to be inoperative.

True enough, but the elected officials who have been making noises about changing the deadline probably know about that and still figure that an extension of the deadline is a good idea. So Martin’s statement of the obvious would likely have been of minimal consequence to the Proponents of Postponements (PoPs).

But Adelstein, also speaking at the Vegas show, felt compelled to stir the pot just a little more by chiming in that the DTV Transition “program has been badly mismanaged. It’s not ready for prime time.” Ouch! He bemoaned the lack of a “program in place in the field” or adequate “phone banks” to help viewers who might need assistance. Looks like he’s lining up with the PoPs.

This minor flare-up, having happened in Vegas, may just stay in Vegas. After all, the decision as to the deadline is one for Congress and the President, not the FCC. Moreover, Chairman Martin’s ability to sway anybody in Congress is already in the tank, if the less than flattering report about him issued by House Democrats last month is any indication. And while Adelstein’s Chicken Little negativism may be a bit overstated, we should all keep in mind that, once the new administration settles into the White House, Adelstein’s party will be in charge of things at the Commission. As a result, we can expect to see FCC-sponsored DTV phone banks getting beefed up starting soon after the Inauguration.

Stay tuned. We still have a month to go before February 17.

Other factors influencing the handicapping include: (1) the recent announcement by NTIA that it’s already maxed out in the DTV converter coupon program; and (2) the rush-rush enactment of the Analog Nightlight Act; and (3) the equally rush-rush adoption by the FCC of the replacement translator program. This all may not rise to the level of Panic In The Streets, but it certainly reflects Spreading Perspiration Stains.

An extension at this point would be somewhat embarrassing – the transition process has been in the works for years, after all, so why aren’t we able to wrap it up on schedule, for crying out loud – but it would not be the end of the world. The television industry and the Media Bureau’s staff have all done their jobs and, despite the enormity of the task, they have all managed to get their end of the process teed up reasonably well for a February 17 transition. The Bureau staff and the industry are to be heartily congratulated for getting us to where we are.

To the extent that any problem may exist, it arises because of uncertainty about the extent of the public’s readiness for the change. If the politicians decide that a month or two more might improve that readiness, where’s the harm? Plus, that would give the newly-minted Congress a chance to crow loudly about how they stepped in at the last minute to save the day for all the Little People who had somehow miraculously managed to miss the governmentally-mandated Shock-and-Awe “education” campaign staged over the last year or so.  Given the relentlessness of that campaign -- designed to clue EVERYBODY into the transition -- one could wonder what more might be done during an extension that has not already been done.  But we'll leave that to our friends on Capitol Hill to decide.

In the meantime, stay tuned (using both analog and digital receivers, just to be on the safe side).

With respect to which stations might be eligible for post-transition “analog nightlight” service, the Commission identifies 300+ stations that satisfy established undesired-to-desired co- and adjacent-channel signal ratio criteria. (The FCC also provides a table of minimum spacings based on those criteria.) In developing those preliminary eligibility criteria, the Commission balanced (a) the desirability of providing “nightlight” service to as many areas and viewers as possible with (b) the statutorily-imposed requirement that such service not cause interference to digital operations.

If you’re on the Commission’s list of “pre-approved” stations, you will be permitted to provide “nightlight” service between February 18 and March 19 as long as you file for a Legal STA (through CDBS) by February 10, 2009. The FCC also requests that stations planning on participating also so notify the FCC in comments filed in response to the NPRM. 

If you’re not on the “pre-approved” list, you can still ask for permission to provide “nightlight” service. To do so, you have to file for an Engineering STA (through CDBS), demonstrating that you would cause no more than 0.1% interference (the standard criterion used by the Commission in the channel election process) – unless you can show that you’re the only station in the area eligible or willing to provide “nightlight” service, in which event you could cause up to 0.5% interference. Such requests are due by February 3, 2009, and will be included on a public notice to be released shortly thereafter. The Commission also suggests that non-pre-approved stations seeking to opt into the program also so advise the Commission in comments in response to the NPRM.

Objections to such requests may be filed, but absent any objection, such stations will be deemed eligible for “nightlight” service. Of course, if any “valid” interference complaints were to be filed, such operation would have to cease immediately.

Note that stations – “pre-approved” or otherwise – opting into the “nightlight” program will also be expected to update their DTV Transition Status Report (FCC Form 387) to reflect that participation. Magnanimously, the Commission has agreed not to charge any filing fee for the Legal or Engineering STA requests that participants will have to file.

With respect to the content of “analog nightlight” service, the Act is very clear: such programming will be limited to emergency information and DTV-education information. No other programming – including any advertising – is permitted under the Act, and the FCC has dutifully proposed to so limit the service. While the Act requires that DTV educational information be (a) made available both in English and Spanish and (b) accessible to persons with disabilities, the Commission appears to extend those requirements to emergency information as well.

The NPRM seeks comment on a variety of questions relating both to station eligibility for “analog nightlight” service and to the content of such service. But in view of the circumstances here, any request for comments seems to be little more than an empty gesture made to comply with the letter of the Administrative Procedure Act. Comments on the NPRM are due within five (count ‘em, five) days following publication of the NPRM in the Federal Register, and reply comments are due three days later. And anticipating extension requests, the Commission has emphasized that the deadlines will not be extended “[n]otwithstanding the holiday season”. Ho ho ho.

While it’s difficult to predict with any reliability when any FCC item will be published in the Federal Register, it’s probably a good bet that the FCC will push to get the NPRM in as quickly as possible. Check back on CommLawBlog for updates.

The legislation (which has been sent to the President for signature – and no sane person anticipates a veto here) permits analog stations, where technically feasible, to continue to operate for 30 days after the transition date to provide public safety and digital transition information. The FCC is required to establish a plan by January 15, 2009, under which analog TV stations will be allowed to stay on the air, but only for the purpose of providing:

1. Emergency information that is broadcast (or required to be broadcast) on the station’s digital signal.
2. Information – in English and Spanish, and accessible to persons with disabilities – about the digital transition and what steps to take to continue receiving TV service (including emergency information). This information will include a phone number and Internet address by which help with the transition may be obtained in both English and Spanish.
3. Consumer education about the digital transition and/or public health and safety or emergencies.

The SAFER Act requires the Commission to make sure that any post-Transition analog operations will not cause harmful interference to the reception of digital television signals. Also, the Act specifically exempts this limited post-Transition analog operation from any cable or satellite carriage rights. And providing further protection to MVPDs, the Act requires the FCC to take into consideration whether such operation would preclude or inhibit the delivery of the digital signals to cable or satellite head-ends. Finally, the legislation prohibits analog operation on Channels 52-69 and, where there is an authorized or pending request for public safety use, on Channels 14-20.

The chief of the NTIA has stated her support of the legislation, and it is likely that President Bush will sign it immediately. Of course, the next step will be for the FCC to throw together the rules by the Congressionally-mandated January 15, 2009 deadline. We will keep you updated as to the developments on the implementation.

Chairman Martin, the main (and possibly sole) FCC cheerleader for the Number 38, was quoted after Gilliland’s impressive crash at Phoenix as saying that, “[e]xcept for the cars that win the races, the cars that are in wrecks get a lot of attention”. We understand this to be a variation on the old saw that any publicity is good publicity, in which event the Homestead race was probably a bust: During the four hours or so that the race was aired on ABC, the Number 38 DIGITAL TV TRANSITION Ford Fusion was mentioned maybe twice and appeared on-screen only for nanoseconds – and only when it serendipitously happened to be near a car the announcers were actually interested in.

As a practical matter, we doubt that the FCC’s sponsorship of the Number 38 (reportedly to the tune of some $350,000) has made any real difference relative to the upcoming DTV transition. The FCC-mandated PSA bombardment has already sensitized (or, possibly, de-sensitized) the viewing public to the fact of the February 17, 2009, transition date. (The fact that at least one brutally funny send-up of those PSA’s has already had more than 700,000 hits on YouTube -- and enjoyed considerable email circulation beyond that -- suggests more than a little audience burn-out on the whole PSA approach.)

But let’s not forget the issue of embedded advertising, which we raised last month when the NASCAR sponsorship was first announced. If and when the FCC moves forward with the embedded advertising inquiry/rulemaking it started last June, it will be interesting to see how the agency deals with broadcast coverage of NASCAR races.

As you may recall, on October 19, when David Gilliland piloted the Number 38 DIGITAL TV TRANSITION Ford Fusion in his first of three races under those colors, he DNF’d. The following week (not racing for the FCC), he managed to finish in the 27 position, but then ran into problems on November 2 in the Dickies 500 at the Texas Motor Speedway (again, not under the FCC’s colors). There he expressed his pique at rival Juan Pablo Montoya’s driving style somewhat aggressively – by smashing into the Montoya’s car in Lap 262, knocking him out of the race. Race officials then took Gilliland out of the race as a penalty for his petulance. Expounding on the contretemps after the race, Gilliland elaborated, “I kind of slid up in front of him and he jacked my rear wheels off the ground going down the back straightaway and then got into me again going into Turn 1 and 2 and jacked me up way up the track. I was trying to let him go and got a good run off the corner and just kind of mis-judged it coming down across him. I was going to let him go, so I feel real bad for those guys."

The final competitive appearance of the Number 38 DIGITAL TV TRANSITION Ford Fusion is set for November 16 in the Ford 400 at the Homestead-Miami Speedway.

The digital TV transition is still scheduled to occur on February 17, 2009.

(By the way, so far the most we’ve been able to glean is that Commissioners Copps and Adelstein were apparently not involved in the decision to sponsor the Number 38 car. Still no word one way or the other from Commissioners Tate and McDowell – both of whom hail from states with NASCAR tracks.)

The FCC’s purpose, after all, was presumably not simply to win races, but rather to promote the DTV transition. And notwithstanding the somewhat inglorious end the car met, since Gilliland didn’t kiss the wall until he had gone around the track 485 times (out of a possible 500 or so), the potential exposure of his car, for promotional purposes, wasn’t all that bad.

We emphasize “potential” exposure because, at least for the hour or two that we watched the race, we were blissfully unaware of the presence of Gilliland or the FCC at the track. The car constantly sat somewhere in the 25-30 (or so) position, bunched up with 10 or more other also-rans-to-be.  As a result, throughout the time we watched, neither the camera nor the race announcers had occasion to acknowledge the Number 38 at all. (It should also be pointed out that the graphics on the car’s hood – the focus of any good NASCAR’s money shot – were less than striking and would not likely have attracted much attention even if they had been on camera, which they weren’t.)

So to the extent that the FCC spent $350,000 for publicity and exposure through on-air mentions or coverage of its car, the Commission does not appear to have gotten much in return this time around. Next time, for sure. (Maybe the Commission can work on the hood graphics a bit between now and then.  We have some ideas -- email us.)

Meanwhile, we still haven’t had anyone calling “shotgun” for the passenger seat in our graphic, below, previously occupied by Commissioner Copps. We figure that there are at least three obvious candidates (those would be Commissioners Tate, Adelstein and McDowell), and maybe others. We hope they won’t be shy – we can probably even find a way to squeeze them all in, if need be.

If you don’t happen to be a NASCAR aficionado or cognoscente, David Gilliland is currently ranked 27th among NASCAR drivers in the Sprint (f/k/a Nextel, f/k/a Winston) Cup Series. He has started 30 races, but DNF’d in six of them. Oops. He hasn’t won any races, but does have a top five and two top ten finishes.

Some publicity photos of Gilliland show him in the No. 38 M&Ms car – which would appear to be sending a mixed message, what with the FCC’s efforts to discourage childhood obesity and all. As it turns out, though, his stint with M&Ms ended a year or two ago. He started the current season with FreeCreditReport.com as his primary sponsor. His secondary sponsors include Twix, Milky Way and Combos (“made with REAL CHEESE”), so there is still some possible disconnect there, but what the heck, it’s NASCAR. Other cars might have provided better co-sponsors in terms of image – the No. 43 Cheerios Dodge, or the No. 5 Kellogg’s Impala, or better yet, the No. 21 U.S. Air Force Ford Fusion. But again, at this stage in the season (and at this stage of the DTV transition), those alternatives may not have been available (at least not for $350,000).  At any rate, the Commission isn’t sharing chassis space with Jack Daniels or Viagra.  

While this bold promotional move may get the FCC the public awareness it’s looking for, there may be some conceptual problems to deal with on the backend.

For example, the three races in which the Digital TV Transition Ford Fusion will run are all set for broadcast on ABC. Will stations carrying those races be permitted to include race coverage in the calculation of their DTV education efforts? What about stations which would not ordinarily carry the races – aren’t they being disadvantaged by losing access to this potential educational resource? Is the FCC prepared to do something to help them out, too?

Let’s also talk about embedded advertising. The FCC, of course, has launched an extensive inquiry into the practice.  When we discussed that inquiry on our blog last June, we raised the question of how the FCC might treat coverage of sporting events – including, especially, NASCAR races – for purposes of embedded advertising. After all, as the FCC now knows, NASCAR racecars are, in a very real sense, bought-and-paid-for billboards, and coverage of a race amounts to near-constant visual images of those billboards. Those visual images are supplemented by commentary which invariably includes mention of the primary sponsors, since the official car names include the sponsors’ names (e.g., “the Number 38 Digital TV Transition Ford”).

Sponsors know all about that coverage, and that’s presumably why they pony up hundreds of thousands of dollars (or more) for the exposure. That’s also presumably why the Commission has hopped on board as well.

But will the FCC insist that each mention of the Number 38 Digital TV Transition Ford be accompanied by some specific audio sponsorship identification – or, worse yet, a “concurrent” on-screen visual ID? In its embedded advertising inquiry, the Commission has suggested precisely such a requirement (although, to be sure, it did not specifically mention how NASCAR races might be treated). Now that the FCC is stepping across the line and joining in the commercial promotion scrum, it may come to recognize the undesirable, and unnecessary, intrusiveness of the sponsorship ID requirement it is thinking about imposing. And if the FCC does not insist on sponsorship ID’s for its car throughout the three races, how will it be able, somewhere down the line, to insist that such ID’s are necessary for everybody else?

One final query. The FCC is using taxpayer dollars to buy the sponsorship, so we’re all shareholders in the enterprise.  So where are our free -- and way cool -- pit crew T-shirts?

Whether you use the Word version or the PDF, once you have filled in the form you will need to save it and file it electronically through the FCC's E-filing (ECFS) system.  Note that you may also need to include supplementary sheets as part of your filing - those will need to be filed through ECFS as well.

The form must be filed no later than April 10, 2008.  Because it appears that the process of completing the form will be more cumbersome than many FCC filings, anyone required to file Form 388 should get started filling in the form sooner rather than later. 

Feel free to call us if you have any questions.

In a footnote to the notice the Commission indicated that reports filed on Form 388 - including the First Quarter report that is due no later than April 10 - must include information on all consumer education efforts that the broadcast station took during the first quarter, even if those efforts were done on a voluntary basis.  Broadcasters should immediately begin to prepare summaries of the DTV education efforts they made during the first quarter of 2008 - including PSAs and other announcements made on-air regarding the DTV Transition, as well as notices placed on the station's website (if applicable).

While the new rules and the new reporting requirement are now effective, the new form (FCC Form 388) to use to meet that requirement is not yet available for submission.  A check on the FCC's website on March 31 revealed that the Form is not yet effective, and as of 2:00 p.m. it was still not available on CDBS.  We will continue to look out for the official version of the FCC Form 388 and post a brief notice when the form is available for use.

On the MVPD side, the Commission will require that notices be placed in the monthly consumer bills, providing notice of the DTV Transition, and referring the consumer to other sources of information, including www.DTV.org.  The Commission will require telecommunications carriers that provide Lifeline/Link-Up services to also include similar notices with their monthly bills.  As for equipment manufacturers, each television receiver or other device intended to work with television receivers (i.e., converter boxes) shipped after the effective date of the rules must include information relating to the DTV transition, including how the transition will affect the use of the purchased device.  Finally, the Commission committed to work with NTIA on making sure that their consumer help desks are staffed with persons knowledgeable about the transition. 
  
The rules adopted in the order will become effective as soon as they are published in the Federal Register.  The forms that are required to be filed will not become effective until after OMB approves them.

It's hard to say. Instead of outlining any specific proposals, the NPRM merely whips Congress's one-sentence vague suggestion into an impressive series of thirteen vague questions (see the NPRM excerpt quoted verbatim below) and directs the downhill flow to broadcasters. And then, recognizing that, notwithstanding the salutary effects anticipated from the sure-to-be-mandated "on-air consumer education efforts", many viewers will likely still need "additional assistance in preparing themselves" for the DTV transition, the NPRM asks for more suggestions on steps the Commission and industry might take to assure that consumers "have access to the information and assistance they need."

But wait, there's more. The Congressional letter also suggested that it might be a good idea for the FCC to impose a reporting requirement on broadcasters relative to their consumer education efforts - you know, maybe a report to be filed every 90 days, listing the "time, frequency and content" of all transition-related PSA's broadcast. Oh yeah, and Congress also suggested "civil penalties for noncompliance".

Needless to say, the Commission has included that suggestion in the stream of "proposals" set out in the NPRM. Again, the NPRM offers little of substance, relying instead on a series of vague questions. (See the aforementioned NPRM excerpt below.) The FCC also proposes similar informational obligations for multichannel video programming providers and consumer equipment manufacturers.

Of course, the TV industry has a horse in this race. The last thing anyone in the TV biz wants is to lose the eyeballs of consumers caught unaware by the coming DTV transition. There's money to be made - and potentially lost - from any transition failures.

But the crux of the rulemaking is to codify what the industry must do, by government fiat - and, consequently, what resources stations must cough up for public education, resources over and above of the millions of dollars already invested in new equipment and spent on maintaining duplicative digital transmissions long before DTV receivers were widespread. A number of smaller market operators, in particular, have struggled to meet these expensive technical demands given the smaller ratio between ad revenues and DTV equipment investments.

While it's true that digital multicasting may improve over-the-air TV's competitive position, many smaller operators have had to mortgage the farm in order to seed a not-yet-sure DTV harvest - a harvest which is particularly unsure as new digital technology increasingly makes video entertainment and information available from sources other than licensed stations.

On the other hand, it is in the broadcast industry's interests to make D-Day as painless as possible. In a world of 500 channels and virtually limitless Internet content choices, customer retention is not just a good idea, it is mandated by the unyielding laws of survival. So the industry should be taking steps. But whether FCC-mandated requirements will help out is another story entirely.

The FCC is seeking public comment on its "proposals" - i.e., the questions set out in the sidebars elsewhere on this page. If you would like to chip in your two cents' worth, the docket is open for comments until September 17, 2007. Replies to those comments are due by October 1, 2007.

PSA proposal:

We propose to require television broadcast licensees to conduct on-air consumer education efforts. Such on-air efforts, we believe, are the most effective and efficient way to reach over-the-air television viewers about the coming digital switch-over. What should these announcements include, and when and how often should they run? Should we impose similar requirements on all television broadcast licensees or should there be distinctions made among licensees? Should the Commission produce an announcement or group of announcements to be used by all broadcasters, or simply provide a list of points that must be conveyed in any compliant announcement? What text or images should the rolling scroll include? Would it be constant or intermittent? On what date would it begin to run, and during which hours would it be required? Would the on-air education requirements increase as the transition date approaches? How would we track the effectiveness of the outreach efforts? Should broadcasters be required to formally assess and report on consumer awareness and preparedness, particularly in certain communities? If so, which communities warrant special attention? Should there be some mechanism for making adjustments in our requirements to reflect these ongoing assessments? Should we adopt certification requirements to ensure that broadcasters are complying? Would forfeitures for noncompliance be appropriate in this area? If so, how would they be calculated?

Reporting proposal:

What level of detail should reports to the Commission on consumer education efforts contain? What additional burdens would preparing, submitting, and retaining such reports place on licensees and permittees? Could these burdens be met by small broadcasters and NCE stations? Is there an alternative to requiring the filing of such reports with the Commission? For example, could broadcasters publicly summarize and describe their consumer outreach efforts via web pages, press releases, in their public file, or otherwise? How would this approach be monitored and enforced by the Commission? What benefits would these reports create for the government and public? How should any forfeitures for noncompliance be calculated?