FCC finally begins to address what post-repack life might look like for LPTVs and TV translators – but it presents more questions than answers.

Of all television operators, LPTV and TV translator licensees have faced the greatest uncertainties as the anticipated repacking of the TV band has begun to loom. That’s because the FCC’s repacking plans thus far have disregarded LPTVs and translators. As a result, LPTV/translator licensees don’t whether their stations will continue to exist post-repack: the repacking process will squeeze full-power and Class A stations into considerably less spectrum than they currently occupy, leaving precious little extra space for LPTVs/translators (except possibly in areas populated more by prairie dogs than by people). And anyone holding a construction permit to convert an existing analog LPTV/translator station to digital or to build a whole new station has been left to wonder whether, if they proceed with construction, they will be able to use those re-built facilities after the repack has been completed.

Now, at long last, the FCC has begun to turn its attention to these concerns.

Digital construction deadlines. First, the Commission has suspended indefinitely the previously-announced September 1, 2015 deadline for transitioning all LPTV/translators to digital operation. In a Third Notice of Proposed Rulemaking (Third NPRM), the Commission has indicated that that a later deadline will likely be necessary in light of the anticipated impact of the TV repacking process on such stations.

And for the same reason it has similarly suspended the construction deadlines specified in all outstanding construction permits for new digital LPTV/translator stations. As we previously reported, the Commission has up to now refused to extend CP deadlines on a blanket basis, forcing permittees to file repeated applications for extensions. No longer. (Any currently pending applications for extensions of such CP deadlines will likely be dismissed as moot.)

New deadlines for full digital transition and completion of CP construction are on track to be adopted in connection with the disposition of the issues raised in the Third NPRM, which looks at a broad range of issues affecting the future of LPTV generally. The FCC’s initial thinking is to make the deadline for constructing new stations the same as the deadline for modifying existing analog stations to digital (whether by flash cuts on their existing analog channels or by use of separate companion channels). The Commission is seeking input on what the new deadline should be.

On the one hand, the FCC figures that setting a new fixed deadline now, in advance of the incentive auction, might provide LPTV/translator licensees more “certainty” about the eventual timeframe for completion.

On the other hand, the Commission might want to wait until after the incentive auction. The auction will, after all, largely (though not entirely) determine the repacking plan for full-power and Class A stations, which will in turn determine which LPTV/translators will have to move and what alternative channels might be available.

The timing could work like this. Following the close of the auction the Commission will announce the new channel assignments for full-power and Class A stations. Those stations will then have three months to apply for CPs to relocate their post-repack channels; but adding to the uncertainty for LPTV/translators, full-power and Class A stations will be permitted to seek alternate channel changes and other facilities modifications. As a result, LPTV/translator licensees and permittees probably won’t know what their options are until at least six months or more after the close of the auction.

That being the case, the FCC is considering an LPTV construction deadline 12 months after the close of the auction. Practically speaking, though, that seems a bit optimistic: even after full-power and Class A stations have resolved their channel assignments, the FCC will still have to process all the LPTV channel change applications (including a mandatory 30-day public notice waiting period and international coordination near the borders). Oh yes, LPTV/translator permittees will also have to find manufacturers to produce any replacement equipment that might be needed and tower riggers to change out antennas. (Reality check: 44% of LPTV stations and 20% of TV translators haven’t converted to digital yet, so a lot of equipment and installation support will be needed to complete the digital transition.)

While the FCC may not establish a rigid deadline for commencement of digital operation, it does intend to adopt an absolute fixed deadline for terminating analog operation by LPTV and TV translators. But those deadlines are closely related. Once an analog station is forced off the air, a 12-month clock starts to run: if the station doesn’t resume operation within 12 months, its license expires automatically. So it’s essential that that station get back on the air digitally within that period. In other words, while the FCC may view the analog termination deadline and the commencement of digital operation deadline as separate and distinct, in fact the former may in many instances determine by the letter.

Adding further pressure on non-digital operators, the FCC is proposing to relieve manufacturers of the obligation to include analog tuners in TV sets and DVRs. If that happens, an LPTV or translator that hangs on in analog (and is not on cable) will be shut out of an increasing number of homes as TV sets are replaced over time.

LPTV/Translator channel-sharing following the repack. Looking at how LPTV and TV translator stations might survive after the repack, the FCC offers some ideas, none of them new.

Channel sharing may be permitted, including sharing by more than two stations. A surviving station could share with a station that would not otherwise survive, or two or more stations forced to change channel could file a joint application to share a single new channel. The division of channel capacity would be left to the stations as long as each station had the right to broadcast at least one full-time standard-definition free video channel. Channel sharing is not the same as brokering a digital stream. In a channel sharing situation, each of the parties sharing a channel has its own FCC license and call sign, each is responsible to the FCC for all its actions, and none is responsible for the actions of the others. In a time brokerage arrangement, one host holds the only FCC license and bears ultimate responsibility for all content on all streams.

The FCC does plan to regulate sharing arrangements to some extent, looking at issues such as equipment maintenance, financial relationships, access to the transmission plant, and what happens if one sharer wants to sell its interest or to withdraw from the sharing arrangement. Withdrawal is a particularly sensitive issue with respect to sharing that the FCC has encouraged for full power and Class A stations, because the FCC has signaled its disinclination to allow the other sharers to have the legal right to take over the capacity abandoned by a withdrawing party. The prospect that the right to recoup capacity might be restricted has put a chill on the willingness of some licensees to consider sharing. A petition to remove this restriction is pending, and we hear that the FCC realizes that some relief is needed if it wants to encourage sharing.

While it is likely that the FCC will permit sharing where all parties are LPTV stations or TV translators, the situation becomes more complicated if an LPTV or translator wants to share with a Class A station, or an LPTV or Class A station wants to share with a full power station. Presumably each sharer will retain its existing rights and obligations; but will Class A/LPTV stations sharing with a full power station be permitted to operate at a full power station’s power level, and will an LPTV station sharing with a Class A or full-power station thereby gain the primary spectrum status enjoyed by its sharing partner? Those areas are where the going gets a little tricky.

Digital Replacement Translators. After the 2009 full-power TV digital transition, the FCC allowed full-power stations to obtain “Digital Replacement Translators” (DRTs) to fill in gaps in their digital service area where they formerly provided analog service. The FCC now proposes to end licensing of new DRTs tied to the digital transition but to open a filing window for new DRTs to fill in gaps in a full-power station’s service area that occur after that station has been repacked. Gaps are likely to be significant where a full-power station voluntarily moves from UHF to VHF. The FCC hasn’t said anything about whether a full-power station could collect auction auction money for moving to VHF but then get back into the UHF band by applying for UHF DRTs.

Moreover, the FCC proposes to give these new DRTs priority over: (a) applications by existing LPTV stations (seeking changes in facilities, including displacement relief to move to a new channel); and (b) applications for new LPTV stations. That priority would apply even if the DRT application were filed later in time. That means that any new deadline for LPTV construction could be undermined not only by requests by full power and Class A stations to change channels or to modify facilities but also by DRT applications coming out of the woodwork. On top of that, the FCC proposes to specify the normal three-year construction period for DRTs, meaning that full-power stations could tie up channels needed by LPTV stations and TV translators without building their DRTs promptly.

The post-repack application process. When the time comes for LPTVs and TV translators to play spectrum musical chairs after the full-power and Class A repack, the FCC intends to open an initial application window for them. All applications filed during that window would be deemed filed on the same day. After the window, applications would be processed on a first-come, first-served basis. If mutually exclusive applications are filed, a window would be opened for settlement agreements, including withdrawal of applications and proposals for channel-sharing. If no resolution were reached, mutually exclusive applications would presumably go to auction – although, given the very low bids in previous LPTV auctions, the FCC will likely avoid any further LPTV auctions if it is able to do so. 

The FCC has proposed to make channel changes easier for LPTV and TV translators than it has been in the past by offering to use its own optimization software to help search for available channels. The initial thought is that the FCC would publish a list of possibly available channels and let LPTV and translator licensees apply for those channels if they want to. There is no telling how the FCC would choose transmitter sites for its list of channels. In that vein, though, the Commission asks whether it should eliminate existing restrictions on LPTV/translator minor change application. (Currently, “minor” changes are limited to site changes of no more than 30 miles; the proposed service area must also overlap the previously authorize service area.) Such relaxation should ease the search for new channels and sharing channels.

Channel 6 “franken-FMs”. Finally, the FCC has decided to tangle with the controversial subject of Channel 6 LPTV stations that provide radio station-type services on their aural carrier. Channel 6, of course, sits immediately below the FM radio band and can be picked up by most FM radios. An LPTV station operating digitally would not ordinarily transmit any analog aural signal that FM radios can receive. However techniques have been developed to combine an analog aural carrier with a digital TV signal. The FCC has not permitted them to be used yet, but now it is asking whether it should. 

This idea may sound like a bonanza for Channel 6 stations, but the FCC has thrown in a few zingers. First, analog audio may be considered an ancillary service, similar to data streams transmitted by TV stations. The bad news: the government is to 5% of gross revenue from such streams. Second, the Commission may decide to provide formal protection from interference to radio stations at the lower end of the FM radio band. That might shut down some Channel 6-originated LPTV stations. Finally, the FCC asks whether analog Channel 6 audio should be subject to all of the public interest obligations normally associated with radio broadcast stations. That would impose a significant new layer of content regulation that LPTV stations have not previously faced. However, since the 5% ancillary service fee applies only to non-broadcast services, we are not sure how the FCC could both collect the fee and impose new broadcast regulatory obligations.

LPTV stations and TV translators have a lot to think about but not much time to do their thinking. Comments will be due only 30 days after publication of the proposals in the Federal Register, with replies due only 15 days later. Check back here for updates.

And you thought you’d have time for your Thanksgiving dinner…