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

What’s a “rural” area? To meet that condition, you must specify a transmitter site at least 75 milers (121 kilometers) from the reference points for any of the top 100 markets. (In an Appendix to the Public Notice, the Commission has helpfully listed not only all of the top 100 markets, but also their respective reference points.)

The geographical “rural only” restriction goes away when Phase 2 begins on January 25, 2010. From that date on, applications for new LPTVs, major changes and companion channels may be filed regardless of the proximity of the transmitter site to a major market.

In both phases, applications will be accepted first-come, first-served, and will be "cut-off" on a daily basis. That means that if you file your application one day after a conflicting application, you're out of luck (unless, of course, the earlier-filed conflicting application gets dismissed, in which case you would get a second chance). If two conflicting applications happen to be filed on the same day, they will be deemed to be “mutually exclusive”, which will entitle them to go through the FCC's auction process.

Applications for new LPTVs and replacement translators must specify an in-core channel (i.e., Channels 2 through 51). Incumbent analog LPTVs looking for digital companion channels should also try to specify an in-core channel, but if nothing suitable is available, a channel between 52 and 59 may be used if the applicant goes through a whole circus full of hoops outlined in the FCC's Public Notice. 

(Our colleague Peter Tannenwald raises an interesting question: why would an existing LPTV analog station with an in-core channel apply for a second in-core channel as a digital companion facility, rather than simply applying for a new station on that second channel? The problem with companion channels is that, at some point, that licensee will have to choose between its original channel and its companion channel – that is, in the end the licensee would have only one station on one channel. On the other hand, if the LPTV licensee got an in-core channel as a new stand-alone station – i.e., not a companion channel – and eventually did a flash-cut switch to digital on its original channel, it would end up with two channels, both of which it could keep.)

And on the topic of flash-cuts, the FCC reminds LPTV and Class A licensees currently operating in analog that they can file on-channel digital conversion (i.e., flash-cut) applications at any time – like right now, if they want.  The Commission encourages analog LPTV stations that are planning on filing flash-cut applications to do so before the FCC begins accepting first-come, first-served digital applications. Acting sooner rather than later will get you ahead of any tsunami of applications that might develop in, say, August (or January) as far as processing is concerned; it may also prevent other applications from limiting your options in some ways.)

The FCC application filing fee for a new LPTV station or for a major change in an existing station is $705.00. There is no FCC filing fee for flash-cut or digital companion channel applications. All applications must be submitted electronically thought the FCC's CDBS program.

It’s been years since the FCC has flung open the door for new (i.e., non-companion) LPTV stations anywhere. As a result, it is extremely likely, if not an odds-on mortal lock, that some serious demand has built up – demand that we will see unleashed on August 25. In other words, we can probably expect a ton of filings as soon as the door opens. Since the coming opportunity is strictly first-come, first-served, applications which are filed at the first opportunity will block out later-filed applications. That being the case, if you have specific notions of filing for a new station in a particular community, you would be smart to get all your ducks in a row so that you will be able to file on August 25. Otherwise, you run the risk that somebody else will get there first.

If you need a hand with putting together an application, let us know.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

Most stations have licensed their BAS equipment with the FCC to ensure primary operations.  However, FCC rules allow full-power broadcasters to operate BAS equipment on a short-term basis of up to 720 hours per year without obtaining a BAS license.  Based upon a recent FCC ruling, Sprint has announced that it will reimburse stations with unlicensed BAS equipment that was purchased before November 22, 2004.