Answer: Apparently not, but enjoy it while it lasts, because next year will likely be a different story.
As all full-power DTV licensees and permittees presumably know, the FCC requires that they file a “Digital Ancillary/Supplementary Services” report on Form 317 on or before December 1, a deadline which is fast approaching. But does that requirement apply as well to digital Class A television, LPTV, and TV translator licensees?
The short answer is apparently not, thanks (it seems) to our old friend, the Paperwork Reduction Act (PRA).
Form 317 is used to report whether, during the 12-month period ending the preceding September 30, a DTV station has provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If there were any such services, the licensee/permittee must fork over five percent of the gross revenues it received. (Ancillary or supplementary services are defined to include any services that are provided using the portion of a facility’s spectrum that is not needed for its required one free broadcast signal. Multiple video streams that are received free by the public are not considered to be ancillary or supplementary services.) Originally the requirement applied only to full-power stations.
So far, so good.
But then the Commission got to considering what should happen if and when Class A television, LPTV, and TV translator stations were to begin the big move to digital. Way back in 2001, the Commission decided that it would allow digital Class A TV stations to offer ancillary/supplementary services, and that it would apply to them the same reporting and revenue payment requirements in place for full-power stations. Then in 2004, the Commission decided that, along with other rule changes, it would also apply the Form 317 requirements to digital LPTV and TV translator licensees. Both in 2001 and then again in 2004, the Commission indicated that it would change the instructions to FCC Form 317 to reflect the new groups required to file. It also revised its rules to refer specifically to the fact that Class A’s would be required to file.
But a job is never really done until the paperwork’s been completed, and it appears that the Commission came up a little shy in that department.
First, the Commission didn’t bother actually to revise the form. As a result, even today the instructions still call for only digital television licensees and permittees to file, with no mention at all of Class A, LPTV or TV translators. Mind you, the instructions have been changed in the interim to specify permittees in addition to licensees as required filers. That change was made to conform with a 2008 expansion of the universe of filers (originally, only licensees, but not permittees, were required to file). But the low power services remained forgotten.
Second, and perhaps as a result of the first issue, the Commission never bothered to ask the Office of Management and Budget (OMB) for its approval to impose the Form 317 reporting requirement on the low power universe – a step which is required by the PRA, as the FCC has acknowledged both generally (here) and with explicit respect to the inclusion of Class A’s, etc., in the Form 317 club.
(OMB records indicate that, between 2004 and today, the FCC twice sought OMB approval of Form 317 revisions, but in neither of those submissions did the FCC even allude to, much less specifically address, Class A, LPTV or TV translators.)
Whether the FCC’s past failure to follow up on this was a matter of design or inadvertence, the Commission appears finally ready to take the official plunge. In October, the Commission published a notice in the Federal Register (a) advising of its plan to revise Form 317 to require Class A TV, LPTV, and TV translator stations to file, and (b) requesting comments on that plan. After any responsive comments have been filed, the FCC will ship the revised form off to OMB for its review. But since the initial deadline for comments to the Commission isn’t until December 20, OMB isn’t likely to see the proposed revision until late December/early January, at which point OMB will invite another round of comments.
These circumstances appear to make it impossible for Class A TV, LPTV, and TV translator stations to be required to meet the December 1 Form 317 filing deadline.
Even if Form 317 is not filed, a Class A or LPTV station has to pay 5% of ancillary services revenues to the government. Some have filed Form 317 to establish on the record that they do not in fact owe any fees. But for those who prefer to minimize paper work (even electronic paper), the FCC cannot take any enforcement action this year against those who do not file.
Be ready for next year, though!