FCC rushes to implement “Analog Nightlight Act” (formerly known as “SAFER Act”) by January 15 deadline
Acting with blazing speed, on Christmas Eve the Commission released a Notice of Proposed Rulemaking (NPRM) setting out the tentative standards and processes for implementation of the SAFER Act which was signed into law on December 23, just the day before the NPRM was released. The SAFER Act – which the FCC now catchily refers to as the “Analog Nightlight Act” – authorizes continued, albeit very limited, operation of some analog TV stations beyond the previously-established February 17, 2009, termination date of such operation.
Since the SAFER, er, Analog Nightlight, Act left little room – and even less time (the Act requires the standards to be in place by January 15, 2009) – for agency creativity, there are few surprises in the NPRM. The Act permits continued analog operation for 30 days beyond the February 17, 2009, final transition date as long as such operation would not cause interference to digital TV signals (or public safety services) and as long as the content of such operation is limited to emergencies and/or educational/informational matter relating to the DTV transition.
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.
If you are planning to file comments on the FCC’s effort to implement the “analog nightlight” service, you’d better put aside thoughts of a pleasant New Year’s Eve and New Year’s Day holiday and start drafting now. The Commission’s Notice of Proposed Rule Making was published in the Federal Register today, December 31. Since (as we previously reported ) the FCC is providing a whopping five days for comments (following FedReg publication), those comments are officially due on Monday, January 5, 2009. Reply comments are due three days later, on Thursday, January 8. (Don’t forget the FCC’s cheery seasonal greeting at Paragraph 2 of the NPRM: “Notwithstanding the holiday season, these dates will not be extended.”) Happy New Year!!!
It’s official. According to the 
It looks like over-the-air analog TV will live on beyond February 17, 2009, thanks to Congress – but at most it will live on only for 30 days, and only subject to severe content limitations.
