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

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.