With just a week to go before the still-on-the-books February 17 DTV transition date, things at the FCC were continuing to percolate.

Still-on-the-books? Why, yes, as of this morning (Wednesday, February 11), it appears that the President had still not signed the DTV Delay Act into law. No one seriously doubts that he will sign it at some point, but it hasn’t happened yet, at least as far as we can tell from the White House web site. 

Despite the fact that the statutory deadline is thus technically still February 17 (at least until Obama signs off on the extension provision), the FCC is charging ahead as if the extension (to June 12) were a done deal. While it’s dicey business to assume that something is going to happen and act accordingly, the Commission is in a difficult spot here, thanks to Congress, so they’re probably entitled to some slack. (We hope that the Commission will be as understanding if/when we happen to get caught between a rock and a hard place and have to act on similar assumptions.)

As previously reported, the Commission has issued a blanket waiver permitting stations to turn off their analog as of February 17 upon appropriate notice to the Commission. (Of course, no such waiver is technically necessary unless/until the DTV Delay Act gets signed into law – but since the FCC is being forced to operate in the Land of Assumptions, the Commission expects the rest of us to join in the fantasy.) But in issuing that waiver, the Commission reserved the right to “limit or reconsider” it. On February 10, the Commission issued a public notice re-emphasizing the potential for “limit[ing]” or “reconsider[ing]” the waiver “in the event that the Commission determines that analog termination on February 17 by a station or group of stations is contrary to the public interest.”   

How might the FCC make that determination?

According to the notice, the waiver might get yanked “if, for example, [the Commission] finds that all or most of the stations in a market will terminate their analog service on February 17, and that the market is one in which many viewers are unprepared for the transition or at risk if the transition proceeds.” Along with the notice the FCC issued two lists identifying (a) all 680+ stations that have either already turned off or have given notice of intent to terminate analog operation by February 17 and (b) all U.S. TV stations, grouped by DMA, with those planning early termination highlighted. So now we all know the markets which will go entirely analog-free as of 2/17, and we know the markets where “most” (by which the Commission presumably means more than half) of the analog service will be shut off. 

But we don’t know whether any of those markets include “many” “unprepared” or “at risk” viewers. Nor do we have a clue how the FCC plans to make that call.

But once the staff has identified such situations, it

may require affected stations to submit additional information to explain and justify how their early termination advances the public interest. Such additional information can include significant economic, technical, contractual and other business reasons that support termination on February 17, and efforts being made to protect consumers from service disruptions. The Commission will scrutinize such information closely in light of the important interests at stake to determine whether a compelling case has been made.

Reality check: the Commission plans to inventory the readiness of viewers in markets nationwide and then notify possibly affected stations, and then those stations will pull together and submit showings of the “significant economic, technical, contractual and other business reasons” supporting early shut-down, and then the staff will “scrutinize” those showings, and then the staff might decide that the early-shut-down waiver should be somehow “limit[ed]” or “reconsider[ed]”. And all this is supposed to happen in seven days (i.e., February 11-17).

Oh, did we mention that February 16 is a Federal holiday? So of the seven available days, only four are business days.

Good luck with that.

It’s possible, perhaps likely, that in floating out the possibility of pulling the plug on the early-shut-down waivers, the FCC might just be blowing kisses in the direction of Congress – a For Display Only option which will not really be invoked, but which will make Congress feel good about things. We will know for sure in about a week. (From a practical perspective, it’s hard to imagine that the Commission believes that, after February 17, it will be able to order stations to resume analog service – but you never can tell.)

Meanwhile, the good folks at the NAB have assembled a tentative “pre-shutoff checklist” for stations planning to pull the plug market-wide. Their list contains a number of very useful (and highly advisable) suggestions, including:

  • select a short-term “market manager” who can serve as a liaison with the FCC and who can organize and coordinate responses to situations as they arise;
  • make sure that at least one (and ideally more, if not all) of the stations in the market is providing “nightlight” service;
  • organize and coordinate local call centers to handle viewer questions;
  • provide continued on-air coverage of the DTV transition, particularly immediately before and (for stations continuing in analog) after the shut-down;
  • monitor public reaction and readiness (through contacts with retailers, local civic and public safety organizations and the like)

Stations planning to take their analogs down next week would be smart to take the NAB’s advice on all these points.

Meanwhile, back at Congress, at least one version of the stimulus bill includes a provision for more money for DTV converter boxes.

Check back to CommLawBlog.com for updates.