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

Since the issue of DTV versus analog operations (and the reg fees attributable to each) first arose, the reg fees paid by TV stations have been attributable strictly to the analog license. Following that logic, the few new TV stations initially licensed as a digital-only stations have not been required to pay regulatory fees for their DTV licenses.

TV licensees which shut down their analog operations before October 1 should take a close look at the reg fee postcards they receive from the Commission to see whether that early termination was taken into account in determining the fees due. Our guess is that it will not have done so. 

If that’s the case, the next step is not entirely clear. Since the reg fee order clearly indicates that a fee exemption applies, such stations should theoretically be able simply not to pay the reg fee for their main license. However, it would probably be a good idea to round up evidence – and maybe even submit it before the deadline for reg fee payments – to demonstrate that the station was digital-only by October 1, 2008. Otherwise, it may be necessary to go through the dreaded process of demonstrating to the FCC after the fact that no fee or penalty was due. 

In any event, since the Commission could try to assess a 25% late fee if it thinks that the fee was due but not paid, it’s a good idea to take steps beforehand to avoid having to explain your position to the FCC after-the-fact. (Note that late payers may also be subject to other regulatory problems, including the very disadvantageous red-light status and increased upfront payment requirements in FCC auctions.)

The Commission also was quick to point out that regulatory fees for Fiscal Year 2010, which begins this coming October 1, will be imposed on digital licenses. After all, DTV licensees must pay “their share” of regulatory fees once the nationwide transition is complete. In the meantime, eligible stations can enjoy their one-year respite.

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.)

FHH’s client, the Community Broadcasters Association (CBA), filed comments noting that this “share-time” approach is not the ticket to achieving greater minority and small-business access to media; rather, the ION/Urban approach would merely establish Urban as a new “gatekeeper” with whom minority programmers would have to deal to gain access. (And let’s not forget that 49% of Urban would be owned by ION.) While not a “minority” organization, the CBA does represent grass-roots efforts of local, low-power television broadcasters across the country, a large percentage of which count minorities among their owners.

Interestingly, the ION/Urban proposal was opposed by a number of entities with a decidedly “minority” bent. The Africa Channel, Gospel Music Channel, and SiTV (a Latino cable network) filed a joint petition arguing that the ION/Urban deal is a gimmick to get around must-carry restrictions. If it succeeds, they observed, it will be the smaller minority programmers who will suffer, as cable capacity will be used up by subdivided full power stations and become unavailable to smaller minority programmers.  They said that the proposal for “amoeba-like” subdividing of a TV channel is nothing more than an attempt to circumvent the limits of the must-carry rules.   

They also noted that: the Urban/Johnson programming proposal is vague (a point which even the supporting parties were forced to acknowledge), while existing minority programmers have existing schedules that are real; and the traditional FCC “share-time” concept involves two separate stations subdividing the hours of the day, not one station subdividing its spectrum.

Meanwhile, Entravision – the prominent Spanish-language media company – chimed in with comments asserting that the proposal is an attempt to circumvent must-carry rules and give big business another foot in the door to cable carriage.  Entravision pointed out that today’s must-carry system, as a practical matter, is for the benefit of only small stations because almost all large stations choose retransmission consent.  (Entravision appears to fear that if NCTA brings another challenge to the entire must-carry scheme based on the ION/Urban proposal, NCTA may win, and small independent full power stations will be the losers.  For that matter, so will Class A and LPTV stations with must-carry, although Entravision doesn’t mention them specifically.)

NCTA also opposed the proposal, but that was to be expected.

In the non-FCC arena, we have also learned of at least one website which has expressed strong concerns about the deal from a minority perspective.

So the much-touted minority support for the proposal is less than universal. It will be interesting to see how the deal – which reportedly has been heavily promoted by outgoing Chairman Kevin Martin – fares in the early days of the Obama administration.

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.

Ordinarily, assignment applications (and  other major applications, for that matter) are treated as “restricted proceedings” under the Commission’s ex parte rules. Under those rules, if anybody wants to communicate with people at the Commission about a restricted proceeding, that communication has to be in writing with copies served on all other parties.  (While oral communications are at least theoretically possible, they may be made only if all other parties are present to hear the communication – a requirement which tends to put a damper on such things as a practical matter.)  The idea is that everybody with an interest in the proceeding should know what everybody else is telling the Commission.

When an otherwise restricted proceeding is accorded “permit-but-disclose” status, one-sided communications with FCC staff – including phone calls and in-person meetings – are fair game.  The only proviso is that the party making such ex parte communications must file a summary of the communication with the Commission; that summary then gets placed in the public file, available for anybody who happens to run across it.

While the after-the-fact written summary approach may seem a reasonable accommodation likely to keep everybody posted as to the flow of information into the Commission, experience suggests that such summaries may not be completely effective for that purpose.  While Commission rules require more, often such summaries seem a bit sparse, content-wise.  And even those that seem to provide a reasonably detailed description of what was actually said do not fully communicate the “feel” of the conversation.  Tone of voice, facial expressions, body language, seemingly offhand banter or comments are lost in the usually terse summary, and yet such factors can be as important as, or even more important than, the bland information set out in the summary.

The trouble is, of course, that since the only description you’re getting is from the folks who were in on the conversation/meeting, you have no way to dispute the accuracy of the summary.  This provides opportunities for some to engage in considerably more forceful lobbying than might otherwise be possible.  The Commission’s “permit-but-disclose” designation certainly does nothing to discourage any interested party, whether for or against the proposal, from trying to work some behind-the-scenes magic.

According to the Commission, classifying a proceeding as “permit-but-disclose” “permit[s] broader public participation.”  We’re not really sure why that would be so, since enabling one-on-one tête-à- têtes between (a) FCC officials and (b) advocates for only one side of the debate would ordinarily seem to limit, rather than expand, “public participation”.  But that’s the Commission’s story, and it’s sticking to it.

The fact that the ION/Urban application has been accorded permit-but-disclose status suggests that things may start to heat up at the Portals.  It’s possible that Chairman Martin sees the ION/Urban application as his last chance to require the cable industry to carry all (or most) digital streams in the post-DTV transition universe.  Commissioners Copps and Adelstein, long-time supporters of diversity (including increases in minority presence in the media), may see the ION/Urban deal as a step in the right direction, even if Urban’s owner, Robert Johnson, may not represent the type of grass-roots local programmers Copps/Adelstein might prefer. In any event, things may be getting interesting. Anyone with an interest in the proposal should be sure to keep an eye on notices of ex parte contacts in the Commission’s Daily Digest.

By the way, the current deadline for comments remains December 26, but it’s hard to imagine that the FCC is going to slam the door all that tight. We shall see.

Of course, the notion that digital streams might be treated as separately licensable “stations” is novel, to say the least. But don’t try to tell that to ION/Urban. To read their application, this is just a straightforward arrangement which falls comfortably under the Commission’s “share time” rule. (That rule may be found in Section 73.1715 of the FCC’s rules – good luck finding any reference in that rule to digital streams, though.)

The “separate licenses” component is an essential element of the proposal because ION and Urban are specifically asking, as part of their application, that the FCC rule that the cable and satellite must-carry rules will require MVPD carriage of Urban’s separate digital channels as well as ION’s primary stream programming. The must-carry rules accord carriage rights to “stations”, not “streams” – hence the insistence of ION/Urban on making sure that whatever Urban ends up with will be called licensed “stations”. This will likely be one of the most controversial elements of the new proposal, as the Commission has thus far resisted intensive efforts to secure must-carry rights for more than one digital stream in the face of vehement opposition by the cable and satellite industries. 

Even if the Commission were to adopt the concept, appeals will almost certainly follow. It’s far from clear that the proposed ION/Urban approach will get a judicial thumbs-up. Further, the mere fact that must-carry issues would be back before the courts could be bad news, since that might provide the courts an opportunity to throw out the entire concept of must-carry, much to the chagrin of many broadcasters.

Before the FCC gets to the must-carry issues, it will have to address the proposed “share-time” approach. Historically, the concept of share-time agreements has been limited primarily to radio stations, with two (or more) licensees sharing a given frequency by allotting each sharer particular time periods during which it could operate. In other words, parties to a share-time deal would not be able to operate simultaneously; rather, one party would operate the station for a while, then it would turn off its operation and the other party would turn on, and so forth, all according to a precise schedule set out in their respective licenses. Informal contacts with the FCC’s staff indicate that the sharing (and simultaneous operation) of digital television channels, combined with the issuance of separate licenses to multiple operators on the digital channels, would be difficult to sell to the staff. But, of course, the staff is not the Commission and the past is not always prologue. A new Democratic-controlled FCC may be enthused about the ION/Urban proposal, as would be Chairman Martin, whose views on cable regulation are not generally sympathetic to cable.

And doubtless in an effort to appeal both to Martin and to the ascendant Democratic administration, the ION/Urban proposal is larded with features likely to attract their favorable attention. Johnson, of course, is an African American who happens not to own any full-power TV stations. As a result, Urban (controlled by Johnson) is being pitched as a “new entrant in the broadcasting industry”. So the proposal would boost minority ownership, a strong plus in the eyes of many at the Commission.   (To be sure, some might question whether this is precisely what is contemplated by the popular notion of “diversity”. After all, Johnson is a billionaire with extensive media ties, and he would control only 51% of Urban – while ION, a non-minority entity with its own stable of full-power TV stations, would own the remaining 49%.)

And Urban is promising to launch a new programming format, including informational and issue-oriented programming targeted to serve the interests of African American viewers and other “underserved” persons in the 42 markets. Details on exactly what that programming might consist of are sketchy at this point, and Urban’s promise is somewhat porous. (“Urban will retain the flexibility to adapt its format to changing viewer needs and interests and other programming that is available in the marketplace.”) But the notion of minority-targeted programming in 42 TV markets provides a potentially irresistible sizzle – despite the fact that any FCC decision based on proposed programming would be subject to huge practical problems (f’rinstance, how would the Commission define “minority-targeted” programming, and how would the Commission define “underserved” persons, and what would happen if the licensee elected to abandon that programming – would the Commission attempt to impose its own programming preferences?)

The proposed share-time licensing approach raises interesting questions about the extent to which a TV licensee can (or should) control the use of the spectrum. If, as ION/Urban suggest, a DTV license really consists of multiple separate licenses, and if the licensee chooses not to use all of the separately licensable channels, why should that licensee be the one to decide who should be the “licensee” of the unused portions? Why should not the Commission make that call through, say, an auction process? Such an approach would open significant opportunities to smaller entrepreneurs, including, for example, numerous LPTV licensees. Additionally, it’s not clear how the ION/Urban approach would jibe with other proposals (e.g., Media Access Project’s “S Class” plan) for fostering greater diversity in media ownership.

Finally, it must be noted that the ION/Urban application is sparse on details. It doesn’t even include a copy of the assignment agreement governing the proposal – curiously, ION/Urban claim they don’t have to provide it with their application. The share-time agreement (which the applicants did file) is all of two pages long. It includes only the most generalized description of the arrangement and the ownership structure of Urban, providing that “the Parties will further specify the detail of their investments in Urban following the execution of this agreement.”

Still, the Commission is clearly taking the new share-time proposal quite seriously. The FCC has issued a public notice inviting comments or petitions on the proposal, although how anyone might be expected to comment on the application as it presently stands is something of a mystery. Let us know if you wish to participate.

In the new Order, the FCC clarified that, although the over-the-air channel on which a station broadcasts may no longer be relevant, DTV must carry stations are entitled to carriage on the “major channel number” identified in the station’s DTV “program and system information protocol” (PSIP). The Order also noted that the “historic” channel positions and negotiated channel positions remain as additional options.

With respect to low power television stations, the Order clarified that qualified DTV-only low-power stations should be accorded the carriage rights they could have demanded for their analog signal. This carriage would be on the same terms as full-power DTV-only stations, meaning that the station can elect to be carried in digital or pay to have its signal downconverted to analog. In addition, the Order provides that the “good quality signal” standards for DTV-only low power television stations shall be the same as the the “good quality signal” standards for DTV-only full power television stations (i.e., -61 dBm at the cable system headend).

The FCC has lately enforced these rules with unaccustomed zeal.  Yesterday it announced fines in three categories.

Seven retailers -- Sears/K-Mart, Wal-Mart, Circuit City, Fry's, Target, Best Buy, and CompUSA -- were fined a total of $4 million for omitting the warning signs on displays of analog-only TVs.

Two importers were fined a total of $1.6 million for bringing in analog-only TVs after the cut-off date.

Seven manufacturers entered into consent decrees costing $3.4 million, and two other manufacturers were fined another $1 million, in connection with alleged violations of the V-chip rules.

Putting signs on store displays may be one way to educate the public.  But where the subject matter concerns changes to TV itself, and the people we seek to reach are (by definition) TV viewers, there must be some other way to get the word out.

If you did not think of the answer right way, don't worry -- it's a hard problem.  It took the FCC a long time, too.  They did not require TV ads about the coming digital TV transition until just last week.