At around 10:00 p.m. on February 11, word came in that the FCC had released yet another public notice relating to the anticipated of analog TV operations on February 17. In this latest missive, the Commission announced that, with respect to 123 particular stations, it has reconsidered the early shut-down waiver it had announced on less than a week earlier (in its February 5 public notice).  (We described the February 5 notice here.) As a result, those 123 stations may not terminate analog services on February 17 (as previously planned) unless they either (a) certify that they will comply with a list of eight terms and conditions or (b) convince the Commission that “extraordinary, exigent circumstances” require such early termination.

According to the FCC, early termination of analog service by the 123 stations the FCC is picking on “poses a significant risk of substantial public harm.” The target stations are all commercial network affiliates in markets in which, according to the early shut-down notifications filed with the Commission, all major network affiliates otherwise planned to take their analogs dark on February 17. The FCC limited its waiver rescission to network stations because

the presence of major networks and their affiliates [is] critical to ensuring that viewers have access to local news and public affairs available over the air because the major network affiliates are the primary source of local broadcast news and public affairs programming. Therefore, even if independent or non-commercial stations remain on the air in these markets, we still considered these areas at risk.

If you’re on the list, the good news is that you can get off the list if you jump through the right hoops by 6:00 p.m. EST on February 13. The bad news is that those hoops may pose more of a burden than it’s worth.

The Commission provides two ways to get the early shut-down waiver back. The first way requires the station to certify its compliance with eight “measures”. Those “measures” are:

  • Ensure that at least one station that is currently providing analog service to an area within the DMA that will no longer receive analog service after February 17, 2009 will continue broadcasting an analog signal providing, at a minimum, DTV transition and emergency information, as well as local news and public affairs programming (“enhanced nightlight” service) for at least 60 days following February 17, 2009. The local news, public affairs, or other programming may include commercial advertising. Note that the “enhanced nightlight” service mentioned here goes well beyond the plain old “nightlight” service previously authorized by the Commission. Since this “enhanced” version will air during the pre-transition, it must include “at a minimum”, local news and public affairs in addition to the standard “nightlight” fare of DTV transition and emergency information.
  • Ensure that available on-air educational information – both before and after February 17 – will include demonstrations of converter box installations, antenna setups, and other helpful information.
  • Ensure that enhanced nightlight service concerning the DTV transition or emergency information will be provided in Spanish and English and accessible to the disability community.  (Since silent scrolls or slates do not provide information to the visually impaired, broadcast notices must also have an aural component, as well as being closed- or open-captioned).
  • Ensure that the DTV educational information, both on-air and through other means, will provide information describing areas that may be losing over-the-air signal coverage temporarily or permanently as the station transitions to digital-only broadcasting. Such information may include detailed maps, listings of affected communities, and instructions on how to assess what type of antenna may be necessary to retain or regain the station’s digital signal, as well as identifying specific locations that will not be able to receive a digital signal regardless of antenna.
  • Each station individually or collectively in the market commits to assisting viewers by providing local or toll-free telephone assistance, including engineering support. Such assistance may be provided jointly with other stations, organizations, and businesses in the area.
  • Each station alone or together with other stations or local businesses and organizations in the market will provide a location and staff for a consumer “walk-in” center to assist consumers with applying for coupons and obtaining converter boxes, to demonstrate how to install converter boxes, to provide maps and lists of communities that may be affected by coverage issues, and to serve as a redistribution point for consumers who are willing to donate coupons, converter boxes, televisions and for those in need of these items.
  • Each station, individually, is complying with the obligation established in the February 5th Public Notice to broadcast a crawl on their analog channel regarding the station’s termination of analog service, for the seven day period from February 10 through the termination of the station’s analog signal on February 17. For the first five days, the crawl must be aired for 5 minutes of every hour of the station’s analog broadcast day, including during primetime.   For the final two days, the crawl must be aired for 10 minutes of every hour of the station’s analog broadcast day, including during primetime. Each station will include in the crawl the FCC toll-free number for our Call Center (1-888-CALLFCC, 1-888-225-5322) beginning as soon as possible following the release of this Public Notice. 
  • Each station will consider and is encouraged to coordinate with and use community resources to provide consumer outreach and support, including in-home assistance.

The second way to get the waiver back is to demonstrate “extraordinary, exigent circumstances, such as the unavoidable loss of their analog site or extreme economic hardship”, that require early analog shut-down. Your showing cannot exceed five pages (not including attachments). But before you get all excited about this approach, the FCC has a word of advice: “We do not anticipate that many stations will be able to meet the high burden applicable to this showing.” Well, then.

The certification process may seem simple, since all it requires at this point is the submission (through CDBS – using the “Silent STA/Notice of Suspension” option on the “Additional Non-form Filings” menu) of a statement that the “measures” are being and will continue to be met, either by your station or by some other station(s) in the market. The trouble is that the Commission ominously observes that it “reserves the right to take appropriate action against stations that certify they will meet the conditions, fail to do so and nevertheless go off the air on February 17, 2009.” 

In other words, Something Bad could happen to you if it turns out that all of the “measures” don’t get satisfied. And while the public notice doesn’t say so, we would not be surprised if the FCC were to send out letters to stations at some point after all is said and done requiring them to certify that all of the “measures” were, in fact, complied with. In other words, it is possible, if not likely, that the FCC will be following up on these certifications to confirm that the hoops were, in fact, jumped through.

The risk here may not be small. The burden imposed by some of the “measures” is not slight by any means. And since satisfaction of the “measures” is likely (if not certain) to depend on the conduct of one or more other stations in the market over which the certifying station ultimately has no control, the station doing the certifying may not be in a position to guarantee such satisfaction. Stations should carefully consider whether the desirability of turning off early really justifies these burdens and risks.

Still, the early shut-down waiver will be automatically restored for any station making the “eight measure” certification.

As with other aspects of the FCC’s endgame efforts to bring the DTV transition to a close, serious legal questions surround this latest certification requirement. For example, the Commission has singled out the 123 stations based, apparently, on the content of their programming, a consideration which raises major First Amendment concerns. And even if such a culling process were plainly permissible (which we doubt), the fact is that the FCC has no actual basis for assessing the availability of types of programming (e.g., local news, public affairs) apparently relied on in that culling process.

But the question is whether, in the long run, it makes sense to litigate these issues, rather than simply cave to the agency in view of peculiar circumstances. Each TV licensee – and particularly those 123 stations on the FCC’s list – should give thought to this before finally deciding on a course of action.