Deadlines set in 2011 remain in place; Channel 6 LPTV’s cautioned on potential for NCE FM interference.

The FCC has nixed requests submitted by a number of LPTV and Class A stations looking for relief from spectrum-clearing measures put in place two years ago.

In 2011, the FCC announced the end of the transition to digital broadcasting for Class A and Low Power Television stations (to make life simple, we’ll call them both “LPTV” for now). In so doing, it set a number of deadlines.  In response to a handful of petitions of reconsideration, the FCC has now reaffirmed those deadlines. It has also addressed complaints from noncommercial (NCE) FM broadcasters that increased power levels for LPTV stations operating on Channel 6 could cause interference to NCE FM stations.

Under the deadlines set in 2011, all TV operation of any kind, analog or digital, on Channels 52 and above had to end by December 31, 2011, and all analog LPTV broadcasting on any channel must end by September 1, 2015. 

The December, 2011 deadline put a particular squeeze on out-of-core LPTV licensees. Some had a hard time finding an in-core channel by the deadline. Others who did find such a channel still had to go dark on December 31, 2011 if they had not received a permit for, or completed construction of, their in-core facilities. Going dark, of course, poses its own major problem: Section 312(g) of the Communications Act says that a broadcast station that fails to operate for 12 consecutive months automatically loses its license.

While a number of LPTV representatives asked the Commission to re-think the December 31, 2011 deadline, the Commission has now concluded that no such re-think is necessary. Looking back on what actually happened post-December 31, 2011, the FCC is satisfied that it gave everybody plenty of time to get the job done and that its staff bent over backwards to help out where possible. While it acknowledges that 275 LPTV stations were eventually canceled post-December, 2011, the FCC observes that 150 of those had received in-core permits but had never built them out. That leads the Commission to conclude that those 150 “appear[ ] to have chosen not to transition.” That’s a bit disingenuous, since the FCC doesn’t mention that some of those stations did not receive in-core authority until almost the end of the 12-month Section 312(g) period and may not have had time to build before the axe fell.

With respect to the September 1, 2015 deadline for ceasing all analog operation on any channel, one LPTV licensee suggested that that hard-and-fast deadline be softened to permit LPTV stations to continue to operate in analog mode until some later time tied to the roll-out of the National Broadband Plan.

The FCC’s response in a nutshell? Enough is enough. Analog is inefficient, and it’s time to put an end to it.  Yes, the Commission recognizes that incentive-auction-induced spectrum repacking is in the offing, but the agency seems oblivious to the practical reality that some stations will find it difficult to justify investing in digital facilities until they know whether they will survive the repack.  Instead, the FCC suggests that LPTV licensees should have seen the repack coming – even though they filed their applications for new stations in 2009, long before the Notice of Proposed Rulemaking proposing the repack. 

The FCC does dangle the vague possibility of some relief for those who find that they can’t build their digital facilities by 2015. Extension applications can be filed, but action on such applications will be based on the standards set out in Section 74.788. That section doesn’t mention the spectrum repack as a possible justification. It does offer as sample justifications:

  • the inability to build a tower because of zoning or FAA approval problems (better add environmental approval, which has kicked into high gear since the extension rule was adopted);
  • the lack of equipment necessary to obtain a digital TV signal; and
  • circumstances in which the cost of construction exceeds the station’s financial resources. 

Anyone thinking about asking for an extension might not want to rely too heavily on economic factors: the FCC observes that it set the 2015 deadline in the belief that it would “be further removed from the prolonged economic downturn that began in late 2007.”   Oh, is the downturn over, including for small businesses?  We didn’t know that. 

But all is not lost, because the FCC notes that the Media Bureau has already granted some extensions based at least in part on the repack.  While that affords some cautious optimism, right now it’s impossible to know for sure how the FCC will deal with extensions of the 2015 deadline. We do know, however, that extension applications must be filed by May 1, 2015.  We suspect that the FCC is just as happy to tackle this issue some other time.

Back in 2011, the Commission distinguished between construction permits for new digital stations, on the one hand, and, on the other, permits for flash cuts (i.e., on-channel conversion to digital) or digital companion channels for existing analog stations. Flash cuts and companion channel permits were extended to September 1, 2015. By contrast, permittees for new digital stations are stuck with the three-year deadline.

That poses a vexing problem for many people holding non-extendable permits for new digital stations. Building a new station can be pretty risky if you don’t know whether you are going to survive the repack.  It seemed to make sense to set the deadline at the later of three years or September 1, 2015, so that the lay of the land after the repack would be known.  Sorry, the FCC has now said, three years is enough time.  If you don’t want to take a risk, then don’t build. 

The end result is that holders of construction permits granted before September 1, 2012, have to build or file for extensions within their initial three-year period specified on their permits.  CP’s granted after that date will not expire until after September 1, 2015.  We note that many permittees have already filed for extensions and have been able to obtain two six-month extensions for good cause.  The Media Bureau does not have the authority to grant more than two extensions and must refer further requests for a vote of the Commissioners themselves.

The final topic addressed in the Commission’s recent order is the potential of Channel 6 LPTV stations to interfere with NCE FM radio stations.  Channel 6 stations operate on 82-88 MHz, and the FM radio band starts at 88.1 MHz. In effect, the aural carrier of TV6 is on a first- or second-adjacent channel to an FM station on 88.1 MHz, depending on how the TV station tunes its aural carrier. 

As a result, the potential for interference is substantial. And to make matters worse, in 2011 the FCC provided an increase in the power limit for VHF LPTV stations, which aggravated the potential for interference. If the TV6 station were a radio station, the FCC’s FM separation rules for adjacent-channel stations would come into play and require a certain distance between the two stations.  But even though FM stations have to protect full power TV6 stations, there is no rule on the books dictating separations between TV6 LPTV stations and adjacent-channel FM stations.

Concerned about the increased possibility of interference from beefed-up Channel 6 stations, a couple of parties objected to the power increase.

The FCC’s answer is that LPTV stations are secondary and so are required to protect FM radio stations – which enjoy primary status – from interference.  LPTV stations on Channel 6 that take advantage of the new power limit thus had better watch their step, because if they do interfere with FM stations, they will have to fix the problem or reduce power or shut down. 

While somewhat comforting for NCE FM licenses, though, that’s not quite a full answer because it doesn’t address Class A Channel 6 stations. Unlike low power stations, Class A stations are not secondary spectrum users.  If Class A stations and FM stations are both primary, who wins?  Does the FCC’s general first-come, first-served rule apply?  The Commission’s recent decision is silent on that point.