New provisions adopted, proposed for early analog termination

Talk about a 24/7 agency. The FCC has, for the second week in a row, kept its own nightlight burning beyond the usual Friday afternoon quitting time: during the evening of February 20, the Commission released a Second Report and Order and Notice of Proposed Rulemaking (SRONPRM) adopting new rules and proposing others to govern the recently-extended DTV transition.

While some of the rule changes are obvious and necessary simply to assure that the Commission’s rules reflect that Congressionally-mandated June 12, 2009, national transition date, others – including both adopted and proposed rules – appear to arise from the Commission’s continuing concern about the public’s readiness for the transition. In any event, if you declined to take advantage of the opportunity to terminate your analog prior to February 17 pursuant to the relatively simple process specified in the Commission’s Third Periodic Report, tough luck: the Commission appears to be determined to make your life harder.

Adopted rule changes

Among the changes which the Commission has formally adopted (and which will take effect upon publication of the SRONPRM in the Federal Register) are the following:

·    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.