FCC’s September, 2013 denial of reconsideration finally makes it to the Federal Register

While the transition of full-power TV stations from analog to digital occurred nearly five years ago, the DTV transition for Class A and LPTV stations is still far from complete. In 2011 the FCC set deadlines for the construction of Class A and LPTV stations and the termination of all LPTV operation on Channels 52 and above. (Read out post about that decision here.) And as we reported last September, the Commission denied reconsideration of that decision.

For unexplained reasons, the order denying reconsideration was not published in the Federal Register . . . until now. Its publication there on March 6 starts the 60-day clock for seeking judicial review of the deadline rules. In other words, May 5, 2014 is the last day for getting to the court house.

For anyone who might (understandably) have lost track of this proceeding in the five months or so since the FCC formally addressed it, here’s what’s on the table.

The FCC has established a uniform deadline of September 1, 2015, for constructing digital flash cut or companion channel LPTV stations; but the FCC declined to extend the construction period for new LPTV stations, which remains three years after the date of grant.  All analog and digital LPTV stations on Channels 52 and above (“out-of-core”) had to move to a channel in the 2-51 range (“in-core”) by December 31, 2011, or else go off the air.  Finally, the FCC clarified that LPTV stations on Channel 6 (82-88 MHz), which have secondary status, must not cause interference to FM radio stations. (FM stations operate on channels starting at 88.1 MHz, immediately adjacent to TV Channel 6.) The FCC didn’t mention how conflicts between Class A stations, which are primary spectrum users, and FM radio stations would be resolved.

The FCC’s refusal to extend the construction deadlines for all new digital LPTV stations until 2015 has been a particularly sore point with many permittees, especially since FCC Chairman Tom Wheeler announced that the incentive auction sale of TV spectrum will not likely occur until 2015. Many permittees have already sought extensions of their construction deadlines, pointing out the obvious: permittees can’t be expected to be able to make intelligent investment decisions without knowing how many and which channels will remain available after the incentive auction, so they need a construction deadline that falls well beyond the auction conclusion.

Will anyone ask an appeals court to force the FCC to give LPTV permittees more time to build?  Will anyone who lost their license because they could not find an in-core channel in time claim that their stations were stolen from them by the government?  Stay tuned to Commlawblog.com for further developments.