Construction deadlines, new reporting requirements imposed

With little fanfare on New Year’s Eve, the Commission released its long-awaited Third Periodic Review (3rdPR) in the DTV transition process. The 3rdPR is more than 108 pages long, not including an additional 36 pages of appendices. You can find the full document at the FCC’s website. The following is a brief summary of some of the most noteworthy aspects of the 3rdPR. This is based on a preliminary review of the 3rdPR; we are undertaking a more detailed review as well, and will provide a more detailed analysis in the next issue of the FHH Memo to Clients.  

CONSTRUCTION DEADLINES– In the 3rdPR the FCC establishes a series of construction deadlines designed to take all full-service TV stations up to the February 17, 2009 transition date. The primary deadlines are as follows: 

  • Stations whose permanent post-transition DTV channel is different from their pre-transition DTV channel must complete construction of their permanent DTV facilities by FEBRUARY 17, 2009. This group includes stations which will be returning to their analog channels or moving to a new digital channel. These stations will NOT be required to construct on their pre-transition channels. Where construction on the to-be-abandoned pre-transition channel has already been partially completed, no further construction of such pre-transition facilities will be required.
  • Stations that (a) will use their pre-transition DTV channel for post-transition operation and (b) already have a construction permit that matches their post-transition facilities as listed in the latest DTV table must complete construction of those facilities by MAY 18, 2008.
  • Stations that will use their pre-transition DTV channel for post-transition operations but that do NOT already have a permit that matches their post-transition (DTV table) facilities must complete construction by AUGUST 18, 2008.
  • Stations which face "unique technical challenges" — such as repositioning a side-mounted antenna, or — which prevent them from completing construction of their final DTV facilities will be subject to the ultimate FEBRUARY 17, 2009 deadline. "Unique technical challenges" include (but may not be limited to) certain situations (a) requiring repositioning side-mounted antennas; or (b) involving power companies unable to provide adequate power for both analog and digital operations; or (c) inadequate space at the antenna site to simultaneously accommodate both analog and digital equipment. Note that such "unique technical challenges" may also justify special temporary authority to operate post-transition facilities at least than full authorized levels as long as such temporary facilities also meet certain other criteria.

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

APPLICATIONS FOR PERMITS FOR POST-TRANSITION FACILITIES – For those stations which do not already have construction permits for their post-transition facilities, the Commission will expedite the processing of applications for such permits as long as the application meets certain threshold criteria and is filed within 45 days of the effective date of the 3rdPR. Unfortunately, the precise "effective date" is not clear, as the 3rdPR specifies no fewer than three separate effective dates for various aspects of the decision. 

PERMANENT REDUCTION/TERMINATION OF ANALOG SERVICE– While service on analog and pre-transition DTV channels must obviously cease by February 17, 2009, the 3rdPR describes a number of scenarios in which such service can be permanently reduced or terminated significantly before that final transition date. 

TEMPORARY, INTERIM OPERATIONS – In order to facilitate construction of post-transition facilities while not unduly interfering with service to the public in the meantime, in some (but NOT all) circumstances stations will be permitted: (a) to remain on pre-transition DTV channel pending completion of construction; or (b) to operate their post-transition facilities at least that full authorized facilities. 

MAXIMIZATION APPLICATIONS– The freeze on maximization applications – i.e., applications for facilities greater than those specified in the DTV replication permits already issued – will continue until August 17, 2008. However, some waivers of that deadline may be granted under some limited circumstances. 

REPORTING REQUIREMENT AND FEES BASED ON REVENUE FROM ANCILLARY OR SUPPLEMENTARY SERVICES– For several years all full service DTV licensees have been required to submit FCC Form 317 annually to report revenue derived from ancillary or supplementary services offered on their DTV facilities, AND to pay fees on such revenues. The 3rdPR extends those requirements to any DTV permittee (as well as all DTV licensees) operating pursuant to any FCC instrument of authorization. 

With only slightly more than a year before the final transition date, the Commission is now obviously trying to implement a series of policies designed to assure a smooth transition in February, 2009. But that will require considerable effort on the part of everyone in the near term.