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

The Communications Act requires that all broadcast stations carried pursuant to must-carry (as opposed to retransmission consent) be “viewable”.  Accordingly, the FCC adopted the “viewability” rule, giving operators of hybrid cable systems two options: either (1) provide the digital signal of all must-carry stations in analog format (in addition to any digital version carried) to all analog cable subscribers, or (2) transition to an all-digital system and carry the signal in digital format only, provided that all subscribers have the necessary equipment to view the broadcast content. 

As noted above, the rule was scheduled to sunset on June 12, 2012 (the third anniversary of the DTV transition). But the Commission figured that, as that date approached, it would take another look to see whether the rule might need to be retained. The Commission would consider whether or not to let the viewability rule die in light of the potential cost and service disruption to consumers and the state of technology and the marketplace.

Having taken that second look, the FCC has decided that the viewability rule should be allowed to sunset, but only after a six-month transition period. So the rule remains on the books until December 12, 2012. After then, while the Act will still impose a general “viewability” requirement, hybrid cable operators will enjoy greater latitude in satisfying that requirement. For example, they could choose to continue to down-convert digital must-carry station to analog, as they have been doing. Alternatively, they could transition to all-digital, but if they do so they’ll have to make must-carry signals available to analog subscribers by offering those subscribers “the necessary equipment for sale or lease, either for free or at an affordable cost that does not substantially deter use of the equipment”. As the FCC sees it, an “affordable” cost in this context means “free or a monthly fee of no more than $2”. 

Hybrid cable operators that opt to transition must-carry broadcast TV stations from analog to digital delivery will have to give 90 days prior written notice (not the 30 days applicable to other similar notices) to affected broadcast stations and customers. 

Importantly, the Commission’s Order does not change a number of aspects of cable carriage arrangements. In particular, it doesn’t change any carriage arrangements governed by retransmission consent agreements. Also, cable systems providing analog-only cable service must still continue to carry local must-carry stations in analog format. And (with some limited exceptions discussed below) must-carry TV stations broadcasting in HD format must be carried in HD on the cable. 

 Small System HD Carriage Exemption

The Communications Act requires that cable operators carry broadcast signals “without material degradation.”  The Commission has historically interpreted this to mean, among other things, that HD broadcast signals must be carried to cable subscribers in HD.  In response to concerns from small cable operators about cost and technical capacity, however, the FCC provided an exemption from the HD carriage requirement for certain small systems.  The exemption was available to (a) cable systems with 2,500 or fewer subscribers that are not affiliated with a large cable operator (one serving more than 10 percent of all national multichannel subscribers), and (b) systems with an activated channel capacity of 552 MHz or less. 

The exemption allows eligible systems to carry broadcast signals in standard definition (SD) digital and/or analog format, even if the signals are broadcast in HD, as long as all subscribers can receive and view the signal.  The exemption, adopted in 2008, was (like the viewability rule) set to expire three years after the DTV transition. 

But the FCC has now decided to extend the exemption to June 12, 2015.  The goal is to provide small systems with additional time to upgrade their systems, allowing them to come into full compliance with the “material degradation” requirement, i.e., by carrying HD versions of all HD broadcast signals. The extra three years are intended to cushion the financial blow by letting the exempt systems spread the costs of the upgrade out over time.

The Commission’s decision setting out its disposition of these two rules has been published in the Federal Register, which means that the decision is now technically in effect. As a practical matter, that has little immediate effect, since the Commission has left both the viewability rule and the small system HD carriage exemption in place, at least for the time being. However, Federal Register publication does establish the deadlines for petitions for reconsideration or the initiation of judicial review proceedings. Some representatives of broadcast interests spent considerable energy attempting to get the viewability rule extended for another three years. Whether those interests will now attempt to get the FCC’s decision reconsidered or reversed remains to be seen.

 To qualify, you must demonstrate that: (a) you held a construction permit or license for an analog station on February 8, 2006; (b) you transmitted an analog signal on or after that date; and (c) you now have either a digital license or at least an application for a license on file (although we have been informally advised by NTIA that they have accepted grant applications where the station is on the air with digital facilities pursuant to special temporary authority).  Also, you must provide proof that you have already paid, in full, all costs for which reimbursement is sought; reimbursements will cover only equipment related to the transmitting plant. 

Final grant applications must be received by NTIA no later than 5:00 p.m. ET on July 2, 2012.  The application can be completed on-line, but submission on paper by overnight delivery service is recommended. 

Stations that have digital equipment on hand and can get it installed and operation, with a license application on file, by July 2 should be sure to apply to NTIA by the deadline.   Bad news for stations that do not already have both (a) an FCC-issued construction permit for digital operation and (b) equipment on site or ready to be shipped.  Folks in that boat probably can’t get on the air by July 2 and so are likely to lose out on the opportunity to obtain a reimbursement grant.

The National Translator Association has asked NTIA to extend the filing deadline, but prospects on that front are not good: the time for the program was set by statute, so any extension would ordinarily require legislative intervention, and the likelihood of such intervention is slim.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The spectrum re-purposing NPRM, released last November, was the opening barrage in the FCC’s campaign for full implementation of the National Broadband Plan – a plan which calls for the “repurposing” of 120 MHz of prime spectrum real estate from television broadcasters to wireless broadband providers.  Among other things, the FCC is proposing to: (a) loosen service rules to permit wireless uses of broadcast spectrum on a co-primary basis with television stations; (b) establish a framework for two or more television stations to share a single six-megahertz channel; and (c) explore opportunities to increase the viability and attractiveness of VHF channels to folks might move on down the band. The FCC claims these steps are necessary to increase the efficient use of the TV spectrum (both UHF and VHF) and facilitate ongoing wireless innovation.

In their initial comments, as might be expected, many wireless providers and wireless equipment manufacturers have heartily agreed with the Commission’s plans. (They even hosted a pow-wow with FCC staffers at CTIA’s headquarters.) 

Broadcasters, on the other hand, have been less receptive to the FCC's ideas. They have questioned whether the incentive auction would truly be voluntary and expressed concern over the potential impact of repacking on a wide range of factors (e.g., service contours, availability of minority-focused programming, ownership limits, disruption of nascent mobile TV services).

Other commenters have urged the FCC to look beyond a strictly auction scenario. Perhaps, for one example, stations could be allowed to use their spectrum flexibly, providing both wireless broadband and over-the-air TV.  Or maybe broadcasters could be permitted to negotiate directly with broadband providers to lease/sell portions of their spectrum.   

If you have an interest in the outcome of this proceeding – and, frankly, who doesn’t? – you should take this opportunity to join the debate. Check out the comments that have been filed thus far in the docket and then take the time to let the FCC know your thoughts. Again, the reply comment deadline has been extended to that anyone looking to participate may submit their reply comments electronically by 11:59 p.m. on April 25, 2011.  If you have any questions about this or would like any help, feel free to let us know.

First, the Commission is proposing to include fixed and mobile wireless services as potential uses in the VHF and UHF spectrum blocks currently reserved primarily for television. This involves a simple amendment to the Table of Frequency Allocations (the Table), which can be found at 47 C.F.R. §2.106. The Table is the official master list of authorized uses of the spectrum. Spread over more than 40 pages of the FCC rule book, it consists of a chart reflecting (a) all of the blocks into which the radio spectrum has been divided and (b) the specific permitted uses for each of those blocks. The Commission is proposing to include “Fixed" and "Mobile” as additional uses for the spectrum currently assigned for television services. 

This change by itself would not mean that broadband uses would automatically flood that spectrum. Rather, it would mean that the Commission could authorize such uses in that spectrum. Of course, the conventional wisdom is that the FCC will authorize such uses once it gets the rest of its ducks in a row. In order to facilitate that eventual process, the Commission is proposing to take this initial reallocation step now.

Second, the Commission is proposing rule changes to permit two television licensees in the same market to “share” one of their 6 MHz channels, thereby freeing the second channel for broadband uses. (Under such a sharing arrangement, two stations would share a single transmitting facility – although each station would be separately licensed and, in principle, independent of the other.) Historically, each TV station has had a full 6 MHz channel to use. Analog operation generally consumed the entire 6 MHz for a single program service, but the advent of DTV service has allowed multiple program streams by a single station over a single 6 MHz channel. The Commission apparently views this arrangement as inefficient. If every station were willing to share channels, that would free up 50% of the spectrum currently devoted to television – leaving that freed-up spectrum available for broadband.

Such channel-sharing would entail a number of complexities, many of which are addressed in the NPRM. Most obviously, the rules would have to be revised to permit such sharing in the first place. But beyond that, channel-sharing raises a host of questions. For example, as envisioned by the Commission, the proposed channel-sharing approach would provide TV licensees who agree to share channels the same MVPD carriage rights they currently hold. Licensees who agree to share channels would not be removed from cable, satellite, or other MVPD systems (e.g., FIOS) for helping out the government. 

The Commission is also seeking comment on other nitty-gritty details of sharing: Should commercial and noncommercial stations be permitted to share common facilities? Should a potential for loss of service by stations seeking to share transmission facilities be considered in determining whether that sharing proposal should be permitted? Ironically, on this last point the Commission suggests that its policy for dealing with service loss is one of flexibility, with the Commission happy to consider “any counterbalancing factors” a licensee might advance. But it doesn’t take a particularly long memory to recall a completely different Commission approach during the DTV Transition, when the Commission routinely denied minor changes to DTV facilities where more than 1% of the population would lose service.

Finally, the Commission is proposing rules to “maximize” the usage of the VHF spectrum. During the DTV Transition, many concluded that the VHF spectrum was not as well-suited for DTV use as UHF. As a result, most full-power stations elected to move to the UHF band to ensure uniform coverage within their service areas. But the UHF spectrum is particularly good for broadband operation, which means that the Commission would now like to wrangle as many TV stations back into the VHF band as possible.

To make such a move more palatable, the Commission is proposing VHF power increases and other revisions to improve the performance of indoor antennas. The goal is to try to offset any disadvantages, perceived or real, in VHF operation. In particular, the Commission is seeking comment on the adoption of the baseline standards for indoor antennas based on the 2009 ANSI/CEA-2032 standard, which establishes testing and measurement procedures for indoor antennas. By taking these steps, the Commission would squeeze more television stations back into the VHF spectrum bands, and free up a larger contiguous block of spectrum adjacent to the 700 MHz A Block which was previously auctioned for wireless uses.

The deadlines for comments and reply comments on the Commission’s various proposals will not be set until the NPRM is published in the Federal Register. Comments will be due 45 days after publication, reply comments will be due 75 days after publication.  Check back here for updates.

While the NPRM clearly sets the stage for TV re-purposing, it’s only the first step in what will likely be a complicated and contentious process. After all, the re-packing of large numbers of TV operations into a tighter chunk of the spectrum will present thorny issues, including the development of a New And Improved DTV Table of Allotments. 

Here again the recent DTV Transition experience provides a glimpse of things to come. Back in the early days of the DTV Transition, the adoption of the first DTV Table of Allotments led to many a battle over which channel would be assigned to which station. Such struggles will likely be even more problematic in a repacking process because that process contemplates a reduced number of channels overall. With fewer options from which to pick, we can expect considerable competition for channels which may be perceived as somehow “better”. How the Commission plans to manage, and resolve, such competition is still a mystery. 

Another concern about repacking: Thousands of Low Power TV stations, Class A TV stations, and television translators are operating on channels not included on the current DTV Table of Allotments. They will face certain displacement during this repacking effort.  While some of these stations may be able to take advantage of the proposed channel-sharing rules, or perhaps participate in the incentive auction, the devil will be in the details.

One thing that sticks in this author’s craw is the suggestion – expressly advanced by Chairman Genachowski and Commission Copps – that the television industry has been sloth-like in taking advantage of the digital spectrum.  Genachowski laments that some stations are not “seizing the opportunity to offer multicast streams or mobile TV”. Copps says that he “would have little interest” in a repacking process if only TV spectrum had been put to “positive use” through the provision of “public interest multi-casting”. 

Such perceptions conveniently miss several important points. 

First, the DTV Transition is still relatively recent. The transition required the acquisition of billions of dollars of new equipment by broadcasters, who also took extensive steps to educate the public on the new technology. They universally accepted, and rose to, that challenge. 

But to create a second or third program stream, a broadcaster has to create, in effect, a second or third station. To be sure, the transmission plant is already in place, but what about the studios, production facilities, staff – and advertising support – for the new program streams? These do not come pre-packaged, available for instant deployment. Quality programming requires extraordinary effort under any circumstance. That is even more the case here, where the new multi-cast streams would not be based on existing network fare (since most network programming is already committed and, thus, often not available for such additional streams).

Additionally, the development of such additional programming is expensive. Let’s not forget that the recession which has plagued the U.S. economy got its start in 2007 and hit hard in 2008, mere months before the government-mandated DTV Transition.

And if you’re talking about supposedly inefficient use of spectrum, what about the fact that other portions of the wireless spectrum for new wireless broadband services (700 MHz D block, for one) lay unused. The current state of multi-cast broadcast television may not meet the halcyon expectations of Copps, Genachowski and others, but at least the television industry built out a nationwide digital television service with the spectrum available to it.

To say that the television industry has somehow come up short and blown its chance is, in my own personal view, demonstrably wrong.   To rely on that misperception as justification for a new repacking initiative strikes me as regrettable.

Be that as it may, the battle call has sounded and the FCC has made its first move. It’s time to fall in and prepare for the long haul. This is likely to be an extended engagement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Once the station has permanently transitioned to digital service, it will be able to change its call to add the “-DT” suffix at no charge on the FCC’s on-line call sign system.  

Those very few digital-only stations that had only a call sign with a “-DT” suffix may use this opportunity to dump that suffix or change it to “-TV”, if they wish – also at no charge.

One caveat – stations with a “-TV” or “-DT” suffix which share their four letter root call with one or more stations in other services may not drop the “-TV”, although they may replace “-TV” with “-DT” and vice versa.

Interestingly, the Commission's public notice did not address the problem of how to ID the separate digital streams of any particular DTV station.  Currently, the FCC's rules provide that such streams may be identified in connection with the station's channel number (e.g., 22.1, 22.2, 22.3), but without reference to the station's official call sign. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Needless to say, other options were available: for example, requiring use of DTS technology, or requiring DTV stations to maximize their facilities to eliminate any signal shortfall. While those options remain available, the Commission concluded that they would likely be more burdensome to TV licensees looking to fill in the gaps as quickly as possible.

So the doors are open and the welcome mat is out at the Commission for replacement DTV translator applications. Actually, the welcome mat has been out since last January, when the FCC announced that, to get things moving along, it would permit the filing of applications for new replacement DTV translators even before the service had been created! (According to the Commission, 20 such applications have already been filed.)

Some highlights of the R&O:

• Replacement DTV translator applications will have priority over other LPTV/translator applications other than displacement applications (with which they will share co-equal status). The R&O indicates that “applications filed for full-service television and Class A television stations” will have priority over replacement DTV translator applications. BUT the Commission has provided no clear explanation of what it means by “applications for Class A television stations”, and the rule itself does not refer to Class A stations separately from LPTV stations.
• Replacement DTV translators will be restricted to Channels 2-51. No fair stepping on the public safety entities and auction bidders who become the primary users of Channel 52-69 on June 12, 2009.
• Applicants for replacement DTV translators will have to demonstrate that (a) a portion of their analog service area will not be served by their full post-transition DTV facilities and (b) the translator will be used to serve that loss area. Full-service stations will not be permitted to use these translators to expand their service areas, although some de minimis expansion may be permitted if it can be shown that such expansion is necessary to replace the loss area. (The term ”de minimis” will be defined on a case-by-case basis.)
• The replacement DTV translator will be associated with, and have the same Facility ID as, the full-service station’s license, and will not be separately assigned or transferred. Thus joined at the hip, a DTV translator may not originate any independent programming or do anything other than repeat the signal of its parent station at all times.  These translators will still be “secondary” spectrum users and will be subject to many existing technical rules governing plain old translators.
• New replacement DTV translator construction permits will specify a three-year construction period. That seems a bit odd, given the FCC’s incredible hurry-hurry approach here. After three years, will any viewers still be waiting for restoration of their “lost” analog service, or will they all have given up the ship and signed up for cable or satellite? But according to the Commission – which had originally proposed a mere six-month construction period – practical considerations like ordering, obtaining and installing equipment and getting local land-use clearances make a six-month time limit unrealistic.

Despite the Commission’s effort to get this new service in place tout de suite, it’s not clear exactly when the new rules will actually take effect. According to the R&O, the new rules and procedures will become effective 30 days after publication in the Federal Register – except for any rules and procedures which require OMB approval. For those latter items, the Commission will issue a further notice once OMB approval has been received.

Check back to www.commlawblog.com for updates about the effective date(s) of the new rules.

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.

Thinking along these lines, a number of applicants either sought waivers of the protection rules or entered into, and submitted, contingent agreements with the nearby Channel 6 station.  (The contingent agreements reflected the Channel 6 licensee’s consent to the filing of the NCE FM application, generally with the proviso that the FM wouldn’t crank up – and thereby cause interference – until the TV station had vacated the Channel 6 premises, thereby eliminating the possibility of interference entirely.)

As far as we can tell, neither the full Commission nor the Bureau nor the Audio Division had opined as to the acceptability of that approach prior to the October, 2007, window.  Since then the Division has indicated in one or two decisions that it was not inclined to accept such applications.  But the Bureau’s April 1, 2009 Notice – issued a mere 18 months after the applications were filed – conclusively slams the door by barring such creative solutions.  The Notice states unequivocally that the Bureau will dismiss any NCE application that conflicts with the interference rules and fails to include either: (a) a showing that no more than 3,000 people would be subject to the predicted interference; or (b) an “unconditional consent letter” from the Channel 6 licensee. To make itself perfectly clear, the Notice warns that that consent “cannot contain any contingencies, conditions, qualifications or restrictions.”  (We get it; we really do.) 

Applications filed in the October, 2007, window are subject to the terms of the Notice, which means that any such application that doesn’t satisfy the Notice is toast, since the Bureau emphasized that any attempt to revive the application through an amendment or a petition for reconsideration (even after the Channel 6 station goes away)  will be unceremoniously rejected.  Further, with regard to currently mutually-exclusive NCE applications for new stations, the Bureau notes it will dismiss the applications of NCE FM “tentative selectees” who have attempted the end run described above. 

The Notice does magnanimously indicate that, after the June 12 DTV transition, the Bureau will open a filing window for NCE stations to permit them to take advantage of the Channel 6 migration.  (The Notice refers only to "stations", which suggests that the window may be limited to licensees seeking to modify their facilities -- that is, the window would appear not to be available for new applications.  Time will tell.)  But applicants for minor changes who attempt to do so before the window opens will  in any event be shown the door.  And, oh by the way, the Commission will start a rulemaking to evaluate the “continued viability” of the Channel 6 protection requirements after completion of the digital TV changeover.

While we appreciate the efficient processing considerations that underlie the Bureau’s approach, that approach may elevate form over substance in view of the imminent departure of most full-power Channel 6 stations.

The CUT FATT petition asked the FCC to adopt new rules imposing restrictions on the ability of patent holders to license their patents. The FCC should step in, it said, because the FCC adopted standards for digital TV that rely on patented technology. CUT FATT plaintively worried that, in the U.S., entities holding DTV-related patents “operate freely in a ‘lawless Wild West’ without supervision or accountability”. It offered considerable information about how such matters are dealt with elsewhere in the world and urged the FCC to step in and impose rules to prevent abuse.

But in its 34 pages of text and attachments and what-not, the CUT FATT petition somehow failed to mention that its member, VIZIO, is and has for some time been involved in a knock-down-drag-out donnybrook before the International Trade Commission (ITC) concerning DTV patents. And just last November – less than two months before the CUT FATT petition was filed – VIZIO had lost an important ruling before an ITC administrative law judge. And CUT FATT’s proposed rules would, if adopted, give VIZIO a useful means of countering that decision.

Who knew?

It’s tempting to conclude that VIZIO, dumped on the canvas by the ITC decision, figured that it might benefit by opening a second front at another federal agency like, maybe, the FCC. But since the FCC would probably not be happy about being called upon to second-guess a sister agency in an on-going slugfest between two contentious parties, a less direct (and less apparently adversarial) approach would seem in order.  Let's think . . . hmmmm . . . Hey,how about this: let’s form a coalition with a cute name and file a petition for rule making! 

Since the petition was filed in January, when the DTV transition was still scheduled to occur in February, VIZIO (or CUT FATT) may have hoped that the FCC’s DTV mania would cause the Commission to consider and resolve the petition tout de suite.  If that was, in fact, VIZIO’s strategy (and we certainly can’t say for sure that it was), it didn’t work:  the FCC was apparently unwilling to move the CUT FATT petition to the front of the line for super-expeditious treatment. That left VIZIO subject to the ITC ruling, which could result in the exclusion of VIZIO DTV sets from the U.S. market in a matter of months.

After the CUT FATT petition had sat around for almost two months with no FCC action, VIZIO apparently determined that a more direct approach would be appropriate. It filed a request for temporary relief, asking the FCC to require the patent holder, Funai Electric Company, Ltd., to license its patent “on reasonable terms” pending action on the CUT FATT petition.

And with that, the bar-room brawl previously contained within the walls of the ITC spilled over into the FCC.

Not surprisingly, Funai responded to VIZIO’s temporary relief request by urging that that request and the CUT FATT petition be consolidated and considered together. (Side note: consolidation would virtually guarantee that this proceeding would be going nowhere fast, but that’s not an argument that Funai advanced openly.)  Also not surprisingly, VIZIO opposed that suggestion, claiming that it needs prompt FCC action in light of an impending decision in the matter at the ITC. Funai responded, and there the matter now sits – already an impressive stack of several hundred pages and likely to grow.

High stakes litigation can resemble three-dimensional chess when parties try to wage their battles simultaneously in multiple fora. Often, though, those fora don’t like being put in the position of gumming up each other’s works. Generally, the FCC’s policy is not to let itself become embroiled in disputes (e.g., civil lawsuits and the like) which are not clearly within its area of primary expertise and authority. 

Patent licensing is one of those areas that fall outside of the Commission’s usual comfort zone. So while there were no rules prohibiting VIZIO (and its alter ego, CUT FATT) from trying to lure the FCC into the VIZIO-Funai melee, it seems to us unlikely that the FCC will be easily suckered into the fray.

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.

• The technical standards for digital TV sets, adopted by the FCC back in 1996, include elements that were (and still are) protected by patent.
• The owners of those patents are overcharging set manufacturers, by $20-30 per set, for the licenses the manufacturers need to make the sets.
• The DTV transition leaves consumers no choice but to buy the sets and pay the inflated prices.
• The FCC should adopt a rule that limits patent royalties and imposes high fines on patent-holders that charge more.

The first question that comes to mind – okay, the second question, after “Who comes up with these acronyms?” – is whether the FCC can do what CUT FATT asks. The FCC does not usually regulate patent licenses. Why does CUT FATT think the FCC can do it now?

In the proceeding that adopted the DTV standard, the FCC acknowledged that some components were under patent, and expressed its confidence that those would be licensed on reasonable and nondiscriminatory terms. It added: “[I]f a future problem is brought to our attention, we will consider it and take appropriate action.” QED! says CUT FATT. The FCC has jurisdiction!

Or maybe not. The FCC’s comment was arguably not part of its ruling at all, but rather just obiter dictum, Latin for “idle musings that have no legal effect.” And even if the FCC meant to commit itself, it cannot create its own jurisdiction. Only Congress can do that. But nowhere does any statute grant the FCC authority over patent royalties. To be sure, there is a provision allowing the FCC to do anything “as may be necessary in the execution of its functions,” but the courts insist that this language does not let the FCC grant itself new powers. Besides, if the problem is as urgent and important as CUT FATT says, why are they coming forward only now, when the DTV transition is just about over?

CUT FATT may in fact have a good case. Next time we upgrade all the 72-inch high-def plasmas down here in the bunker, we’ll be happy to pay $20-30 less. But in calling on the FCC, CUT FATT may have knocked at the wrong door.

Still and all, the FCC (for whatever reason) has invited comments on the CUT FATT petition. If you want to chip in your two cents’ worth (bearing in mind, of course, that you could end up $20-30 on the plus side if things work out), you can file comments by April 27, and reply comments by May 27.

·    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.

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.

Even if we’re all incredibly optimistic that the delay will pass, at this point it has not passed and, unless and until it does, February 17 will remain the date on which all affected TV stations should focus. That being the case, it’s important for the time being to stay the course, maintaining the schedule of DTV programming – PSAs, crawls, snipes, the works – as if February 17 is still the deadline, because it IS still the deadline. Since the industry as a whole has been marching toward that deadline for some time now, it should not be a big deal to keep at it for at least another week or so. (And if the deadline ends up not being extended, that just means we all stick to the schedule that we were already committed to.)

It seems to us that the real victims of this last-minute spasm of Congressional activity are the FCC staffers who must adjust to Congress’s whims. They have been struggling for years to meet the etched-in-stone February 17 date, and to their credit they have largely succeeded in getting all the players lined up to do so. But if the deadline gets extended, the staff will suddenly have to shift gears and figure out how best to factor the new deadline in. Good luck with that.

(Keep an eye out for a public notice from the staff providing guidance on what steps to take if the deadline does get extended.)

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).

This is obviously disappointing news for anyone who held off until the last minute (maybe they expected Santa to leave coupons in their stockings), but it should not have been unexpected. The coupon program, already strained a couple of months ago, saw a huge uptick in requests in December. As a result of the overall numbers since the program started last year, NTIA is not currently in a position to issue any more new coupons. Instead, it will have to wait for already-issued coupons to expire (they have a 90-day shelf-life, use-‘em-or-lose-‘em; the expiration date is printed on the face of each coupon), which will then free up funds to cover the issuance of new coupons. NTIA estimates that about 350,000 coupons expire, unused, each week – but in December alone NTIA received new requests for more than seven million coupons, so late-requesters are probably in for a wait.

Of course, Congress could come to the rescue with additional funds. That may be in the works, but in the current transition mode between administrations, it’s likely to be difficult to get that particular spigot opened up in the immediate future. NTIA did indicate that, as matters now stand, if you are only just now filing for your coupons, you will almost certainly not receive them before February 17.

Meanwhile, if you are among the lucky ones who already have coupons, here’s a CommLawBlog tip. When you go to use your coupons, don’t cough them up until you are absolutely sure that you’re ordering what you want. One of our colleagues had the unhappy experience of ordering a couple of converters online. At the start of the transaction the merchant asked for the coupon info and PIN, which our trusting colleague provided. It turned out that other terms of the transaction (e.g., shipping costs) were not to our guy’s liking and he bailed on the deal, meaning that he did not buy any converters. But when he tried to use his coupons elsewhere, he found out, much to his chagrin, that the coupons showed up in the system as having already been cashed in. Oops.

If you want a replacement digital translator, you may file for it using FCC Form 346 on CDBS starting on January 5. (Purse-strings note: The filing fee for the application is $675.) Your application will have to include a technical showing that: (a) a portion of your existing full-service TV station’s analog service area will not be served by that station’s full, post-transition digital facilities, and (b) the proposed replacement translator will serve only the demonstrated loss area. For these purposes, “analog service area” is being defined as “the authorized service area actually served by the analog signal prior to analog termination for the transition”.

While the Bureau emphasizes that replacement translators must be limited to the demonstrated loss area, there’s a loophole: you may propose replacement translator service beyond the loss area, but to do so you must demonstrate that it is “impossible to site a translator that replaces a loss area without also slightly expanding the full-service station’s digital service area.” The Bureau offers no definition of the word “slightly”.

A few other things to bear in mind.

• Replacement translators may not operate on Channels 60-69. 
• Channels 52-59 may be used, but only if no suitable in-core channel (i.e., Channels 2-51) is available.  A “suitable in-core channel” is defined as “one which would enable the station to produce a digital service area comparable to its analog service area.” Any applicant seeking an out-of-core channel will have to certify to the unavailability of any suitable in-core channel. 
• Out-of-core applicants will have to notify all potentially affected 700 MHz commercial wireless licensees of the spectrum comprising the proposed TV channel and the channels first adjacent to that proposed channel. That means all co- and first adjacent-channel wireless licensees within whose licensed geographic boundaries the replacement translator is proposed to be located as well as all co- and first adjacent-channel licensees whose geographic service area boundaries lie within 75 miles and 50 miles, respectively, of the proposed translator site. (Identity and contact information for all 700 MHz wireless licensees is available through ULS.) These notifications must be made when you file your application, and you will be required to certify in the application that the notification requirements have been met.

So much for the CP application. If you want an STA – which, if granted, will allow you to crank up your replacement translator immediamente – you can file for one through CDBS, also starting on January 5. STA requests have to include the same showings and certifications described above. That shouldn’t be too hard to handle, though, because another condition of the STA process is that the STA applicant must simultaneously file for an application for a construction permit – so you can presumably re-cycle the showings included in the application. (Extra purse-string note: there’s a separate $160 filing fee for the STA request.)

The Bureau’s public notice does not address the sticky issue of possible mutual exclusivity, but the full Commission did in its pre-Christmas NPRM: Applications will be processed on a first-come, first-served basis, with the earliest filed application getting priority. If more than one mutually exclusive application is filed on the same day, the FCC will allow a 10-day settlement period. If there is no settlement, the applications will go to auction.

The window opens on January 5. Happy New Year.

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.

Replacement translators may be requested only by the licensee of a full power station and only to fill in an area covered by the station’s analog signal but not covered by its digital signal (although the FCC asks whether de minimis extensions of the analog service area should be permitted – and if so, how “de minimis” should be defined). The translator license will be firmly riveted to the full power license, so it cannot be sold or assigned apart from the full power station. Presumably a Replacement translator may not convert to a Low Power TV Station or originate separate programming, although the FCC does not explicitly say that in the NPRM.

Applicants must first search for a channel in the range 2-51. If no channel is available, an application may be filed for Channels 52-59, with notice to be given to local public safety entities that will ultimately have access to those channels. Stations are encouraged to consider installing multiple transmitters on their full power channel, under the recently adopted  distributed transmission systems (DTS) rules; buying time on existing Low Power Television (LPTV) stations; and buying time on another full power station’s secondary digital stream. Exhausting these possibilities does not seem to be a firm pre-requisite for filing for a Replacement digital translator, but some commenters will undoubtedly request that Replacement translators be a solution of last resort. The FCC also proposes a short-leash use-it-or-lose it policy, where Replacement translator construction permits are valid for only six months rather than the traditional three years.

Applications for Replacement translators will have priority over all other Class A, LPTV, and TV translator applications except applications for displacement relief where a station is forced off its channel by interference. Replacement translators will have equal priority with displacement applications; so presumably, the first-come, first-served principle would protect earlier filed displacements. However, pending applications for new or modified Class A, LPTV, and TV translator stations, including digital companion channels, could be bumped by a Replacement translator application. It appears that all granted Class A, LPTV, and TV translator applications would be protected, even if the facility is unbuilt.

The FCC proposes that Replacement translators be a secondary service, even when an application is granted – meaning that they could be bumped by a full power station application. The FCC also invites comments on the impact that Replacement translators might have on the availability of “White Space” spectrum in urban areas for unlicensed wireless networks. White Space proponents, some of whom have already suggested that their service should not be secondary, may be sharpening their fangs in preparation for battle.

Whatever your viewpoint may be on translator and White Space issues, it does appear that the Replacement translator train is barreling down the track rather quickly – it would not surprise us to hear that a Report and Order approving the proposed rules has been written already, even before comments are received and reviewed. However, there may be opportunities for commenters to shape some aspects of the rules, even if defeat of the entire proposal is unlikely.

In view of the very short comment period, check back to this site periodically 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.)

Under well-established rules and precedent governing appeals taken to federal courts, a party seeking to challenge an agency’s ruling must demonstrate that that party would, in fact, be harmed by the ruling being challenged. (This is known generally as having to demonstrate that you have “standing” to bring the appeal.) 

In this particular case, cable operators who would be subject to the new rules would presumably have had a pretty easy time establishing their “standing”, since they would be the ones bearing the brunt of the rules. But cable operators did not appeal. Au contraire, they announced (through the NCTA) that they planned to comply with the new rules whether or not those rules got tossed.  

Instead, it was cable programmers who appealed. Since any harm that they might suffer would be, at best, secondary and indirect, they had an uphill struggle on the standing front. (Their argument was that the viewability rules would force cable operators to reserve more bandwidth for carriage of over-the-air stations than would normally be required, thus creating a shortage of cable bandwidth which would, in turn, increase “competitive pressure” on cable programmers.)  In the Court’s view, they came up short.  As a result, the Court slammed the door on the programmers without consideration of their substantive arguments, leaving the viewability rules undisturbed.

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?

While the Commission has made crystal clear for years that full-service broadcast service would be removed from the 700 MHz band as of the DTV Transition date, the Commission has not previously been as clear about low power auxiliary operations that have also been permitted in that band. The FCC now says that everyone engaging in such operations should have (and may have) figured out their days were numbered, but it does not appear that the FCC has previously taken a position, directly or otherwise, on the subject.

Whether or not the FCC’s silence to date has been the result of conscious planning or inadvertent oversight, the agency has now snapped into action with a vengeance. As a result, effective August 21 the Commission will not accept or grant applications for further licenses for low power services in the 700 MHz band, nor will it process any requests for equipment authorization which would involve such services.

Looking ahead, the Commission has proposed to modify all outstanding low power 700 MHz licenses to specify that, to the extent that those licenses permit operation in the 700 MHz band, they will expire as of February 17, 2009. According to the Commission, a wide range of alternate frequencies are available for use for such services, so roping off that particular band should have only “minimal impact” on such operations.

The Commission has also proposed a blanket prohibition against the marketing of any devices that operate as low power auxiliary stations in the 700 MHz band. That would include the manufacture, import, sale, offer for sale or shipment of such devices. The prohibition would take effect as soon as the proposal is adopted. Since this proceeding appears to be on a fast track, it’s possible that the prohibition could be in effect before the end of the year.

Besides the upcoming DTV Transition deadline, a major impetus for the FCC’s sudden concern about low power 700 MHz operation was pressure from the “Public Interest Spectrum Coalition” (PISC), which filed a complaint against a number of wireless microphone manufacturers and a petition proposing, among other things, the creation of a “General Wireless Microphone Service” to utilize, on a secondary basis, vacant UHF channels below Channel 52. The Commission has requested comments on all of the PISC proposals. The context of that request, however, suggests that it is largely pro forma in nature, and that the Commission’s real interest lies with the proposals, described above, which the agency specifically addresses elsewhere in its order.

The FCC’s decision does not address precisely how the agency would enforce a blanket prohibition against everyone who currently owns and operates a 700 MHz wireless mike. Many such mikes are used by organizations – churches, theaters, corporate event venues, among many others – who presumably are not especially au courant about the technical details of their gear, much less the FCC’s pronouncements. If the FCC thinks that it can wave its magic rulemaking wand and make all low power 700 MHz operation vanish in the blink of an eye, it probably has at least one more think coming.

The deadline for comments on the FCC’s (and PISC’s) proposals has not yet been established. Check back here for updates.

visit to Anchorage and Fairbanks is set for August, while the trip to Phoenix is scheduled for the end of December.  Details of the visits will be released by the FCC later.

Meanwhile, the Commission has announced that the Wilmington, NC DTV test will commence on September 8 at noon, at which point the local commercial network affiliates and the local Trinity Broadcasting low-power station will broadcast their standard programming on digital channels only.  BUT the Commission has carved out an exception that will permit the participating to broadcast emergency information in analog should the need arise – for example, if a hurricane should threaten the area.  (Note that, when the transition does finally arrive in February, 2009, stations will not be permitted to broadcast anything – emergency or not – on their analog channels.) In addition, during the Wilmington test period the participating stations will be broadcasting, in analog, a message advising viewers of the test and alerting them that, if they are seeing the message, they need to upgrade to digital.

And one more thing – the Commission has established a Speakers Bureau which will arrange DTV-related presentations, free of charge, to any group anywhere in the country requesting one. Just go to www.fcc.gov and click on the “Request A Speaker” button.

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

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

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

While the lifting of the freeze is a welcome sight, potential applicants run the risk that they will submit an application that conflicts with those licensees with February, 2009 construction deadlines - some of whom may wait until June 19, 2008, to submit their construction permit applications to implement their post-transition facilities.  While the Commission's

Public Notice

is not entirely clear on this point, it is possible (if not likely) that applicants filing in this window will need to protect those initial construction permit applications submitted on June 19, 2008, and there is also a risk that a minor change application submitted on June 19th will conflict with a maximization application submitted during the window.  Therefore, applicants submitting maximization applications and freeze waivers should be sure to protect the Appendix B facilities (as opposed to the already-authorized facilities) of all stations.

speech in this way surviving constitutional scrutiny.  Another problem raised by several parties is technical in nature.  Again, unlike, broadcast television, there is no single technology by which Internet video is delivered. If a broadcaster finds it is even possible to automatically convert captions from a television program to the Internet stream (not always a guaranteed proposition because many programs are condensed on the Internet, with commercials removed), viewers use different programming formats to receive the stream.  Captions prepared for delivery via Internet Explorer may not be readable in Linux.  Work to solve this problem and create a single format for captioning is ongoing but still some time away.  Finally, there is the further concern that captions would be unreadable on smaller computer screens, let alone iPods, iPhones or other mobile phones to which the law would apply.

Rep. Markey held hearings in the House Subcommittee on Telecommunications and the Internet, of which he is Chair, earlier this month.  No bill has been introduced, nor have further hearings been scheduled but we'll keep you posted.

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.

Stations which are already operating on their final DTV channel but which still need a CP to enable them to build out to their Appendix B facilities must file for such a CP by March 17, 2008.

All other full-service TV stations which still need a construction permit in order to build out to their Appendix B facilities can and should file for such a permit as soon as possible.  The FCC has indicated that Form 301 (for commercial stations) and Form 340 (for NCE's) applications filed by such DTV stations by March 17, 2008 will be given expedited consideration and may be granted as quickly as within 10 days of filing.

Any station which is already operating on its final DTV channel and has at least a construction permit for its Appendix B facilities must complete construction by May 18, 2008.  If any such station will not be able to meet that deadline, it must file an extension application (FCC Form 337) no later than March 19, 2008.

Compliance with the new Program System and Information Protocol (PSIP) rules kicks in on May 29, 2008.

Stations which are not currently operating on their final DTV channels and which need permits authorizing construction of their Appendix B facilities must file applications for such permits no later than June 19, 2008.

If you are a full-service TV licensee or permittee, you should familiarize yourself with the upcoming schedule and confer with your communications counsel and consulting engineers to assure that you meet all necessary deadlines.

CONSTRUCTION STATUS REPORTING FORM- In an effort to inventory the status of DTV construction efforts across the board, the Commission has adopted a new form (FCC Form 387), which must be completed and filed by all full-power TV stations by February 18, 2008.  

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?