In addressing LPTV/translator future, FCC declines to loosen several regulatory leashes

Low Power Television (LPTV) and TV translator stations face a difficult and uncertain future in the post-incentive auction context. Thanks to the auction (and the consequent spectrum repack), the FCC will reduce the number of channels available for television broadcasting – perhaps eliminating for TV use all channels above Channel 31. All full power and Class A stations will then be repacked into the remaining channels based on computer programs that disregard the existence or fate of LPTV/translators. LPTV/ translator operators have, not unexpectedly, loudly cried “foul”; and two court appeals are pending over their ultimate fate.

Against this background, the FCC has finally started to respond, releasing a Third Report and Order and Fourth Notice of Proposed Rulemaking, addressing, at least in part, the post-repack status of LPTV/translator stations. Whether – and if so, how many – LPTV/translator stations will benefit from the newly adopted measures is unclear. Indeed, it’s even unclear how many will ultimately survive at all over the long run. In its decision the Commission rejected or deferred consideration of several proposals aimed at unleashing the LPTV industry in ways that might attract capital investment. Nevertheless, the Commission has at least (and at last) recognized the need to address the place of LPTV/translator services in the overall regulatory scheme once the spectrum repack has occurred.

As most of our readers probably know well, in the Spectrum Act Congress explicitly accorded protection after the post-Incentive Auction spectrum repack to the facilities of only full-power and Class A stations. By contrast, in the Act Congress addressed LPTV/translators only to say that their rights were not altered. The repack of surviving full-power/Class A stations into a reduced portion of the spectrum will almost certainly lead to the displacement of LPTV/translator stations from their presently authorized channels – but, with less spectrum to work with, many such stations will likely have a difficult time finding alternate channels on which to operate. Aggravating these unpleasant circumstances, LPTV/translator licensees have been subject to a longstanding Commission mandate to convert themselves to digital operation, thereby completing the transition for analog to digital TV that was largely completed for full-power stations in June, 2009.

The FCC has now taken a few steps to address the predicaments faced by the LPTV/translator industries. The highlights:

Digital Construction Deadlines. Five years ago, the Commission announced that all LPTV/translators would have to close down their analog operations by September 1, 2015, and thereafter either transmit in digital format or go dark. Meanwhile, the spectrum repack came along, putting LPTV/translators at risk of having to build digital facilities twice – once by September 1, 2015, and again after being bounced to a new channel after the repack – all without reimbursement of their costs. Recognizing the significant financial burden imposed by the double-build situation, the Commission has tossed the old deadline (which had already been suspended in April, 2015), replacing it with a new deadline tied to the completion of the incentive auction/repack process: The new digital transition deadline for LPTV/translator stations will be 12 months after completion of the 39-month transition period allowed for full-power/Class A stations to move to new channels after the repack. In other words, LPTV/translators will have up to 51 months to move after new full power/Class A channel assignments are announced in an anticipated post-auction Channel Reassignment Public Notice. It is not so clear what will happen when some full power/Class A stations complete their transition in less than 39 months; presumably, any LPTV/translator that stands in the way will have to move aside whenever the full power or Class A station chooses to go on the air on its new channel.

The Commission has emphasized that the new deadline is a “hard” one for termination of analog operation – that is, all LPTV/TV translator stations will have to close down analog operations by 11:59 p.m. local time on the new transition date, whenever that date happens to be, regardless of whether the station’s digital facilities are operational. Any stations without operational digital facilities at that point will be required to go dark while they complete digital construction. By going dark, they will risk losing their licenses entirely if they don’t resume operation within 12 months: under Section 312(g) of the Communications Act, any broadcast license expires automatically if the station fails to broadcast for 12 consecutive months.

Despite its insistence on the “hardness” of the new deadline, the Commission has provided one last safety net: analog LPTV/translator stations experiencing delays in completing their digital facilities will be permitted to seek one last extension of time. Any extension will be for not more than six months; the request for the extension will have to be filed not later than four months prior to the new transition date; and the station will have to justify the extension from among a list of reasons the FCC will accept, which do not include “I don’t feel like it now.”

The new digital transition date also applies to entities with valid construction permits for new digital LPTV and TV translator stations. All permits for unbuilt stations will now expire at the end of the 51-month period, without the need to file individual applications for extensions of time every six months; and those permittees will also be entitled to seek that final six-month extension, if justified.

Channel-Sharing Option Now Available. LPTV/translator stations will now be permitted to channel-share, just like their full-power and Class A counterparts. All channel-sharing agreements (CSAs) will be voluntary, with the terms crafted on the unique business plans and operational needs of the parties. As with full-power/Class A stations that have CSAs, LPTV/translator stations will continue to be licensed separately; each will have its own call sign; and each licensee will separately be subject to all of the Commission’s obligations, rules and policies. Two or more sharing stations may divide the 19.39 MB capacity of one digital TV channel however they like, as long as each party retains spectrum usage rights sufficient to transmit at least one standard definition (SD) programming stream at all times. (The FCC does not state how many bits per second it considers necessary for an SD stream.)

Licensing of CSA participants will be a two-step process. If no technical changes are necessary at the host station (the “sharer”), a channel-sharing station relinquishing its channel (the “sharee”) will file an application for a digital construction permit for the same technical facilities as the sharer station. The application must include an unredacted copy of the CSA as an exhibit. Significantly, the FCC declined to relax the rule that an LPTV station may not move more than 30 miles, and its old and new protected service contours must overlap. These restrictions – which don’t apply to full-power or Class A stations (sharing in those services is permitted as long as the sharing stations are licensed in the same DMA) – will significantly limit sharing possibilities. Requests for waivers of the 30-mile and contour overlap rules will be entertained, but only upon a showing that there is no available channel for sharing within the restrictions, and with a negative presumption against moves to more densely populated areas. After the FCC grants the construction permit, the sharee(s) will move to the host station and notify the FCC of cessation of operation on their old channel.

Channel-sharing LPTV/translator stations will have three years after FCC approval to implement their arrangements. In situations where the sharer station has not been displaced by the repack, the FCC will begin accepting channel-sharing applications after completion of the incentive auction. Where all the sharing stations have been displaced by the repack, applications won’t be accepted until the initiation of the post-incentive auction application window for applications to move to new channels that will be scheduled once the results of the post-auction repack have been announced.

For the time being, such sharing will be limited to secondary stations only; that is, two or more LPTV’s and translators will be permitted to share with one another, but not with primary stations. That limitation, however, may not be long-lived. In the Fourth Notice of Proposed Rulemaking component of its decision, the FCC has proposed to allow “primary-secondary sharing”. The standard channel-sharing rules and policies already announced for primary-primary and/or secondary-secondary sharing are likely to apply to primary-secondary sharing. However, the latter will give rise to some additional wrinkles as to which the Commission specifically requests comment, including the implications of a secondary station achieving at least de facto primary status and how cable and satellite carriage obligations will be applied.

Assistance for Finding New Channels; Displacement Application Filing Window. After the repack, the FCC will open a window for LPTV/translator stations displaced from their present channels to file to move to a new channel. The Commission has directed the Media Bureau, prior to opening the window, to utilize the agency’s repacking and optimization software to identify potential channels that might be used by displaced LPTV and TV translator stations. In areas where the analysis indicates that not all displaced stations may be accommodated, the staff will also come up with possible arrangements based on “other objectives, such as maximizing the number of stations assigned or minimizing the interference that stations might experience.” In other words, it appears that the Commission plans to make a serious effort to squeeze as many displacement channels in as possible. Channels (and “possible arrangements”) so identified will be listed in a public notice at least 60 days before the window opens.

LPTV/translator operators will not be required to apply for the channels listed in the notice, but the notice may provide a useful starting point. The Bureau-provided preview of potential alternative channels may dilute advantages some stations have enjoyed in previous windows (e.g., stations able to move more quickly or hire more capable engineers). There will also be processing priorities that will cut low-priority applicants out of access to the Bureau-identified channels. The first priority will go to DTDRTs (see below), which will be given priority even against earlier-filed applications by LPTV stations and traditional TV translators and will thus be able to get access to the most desirable available channels. In addition, displacement applications by operating stations will be given priority over applications by holders of unbuilt construction permits. The FCC does not state by what date a station must be operational to get displacement priority, but the threat of losing that priority may be an incentive for new stations to be built sooner rather than later.

Replacement Translator Service. The incentive auction is also giving rise to a “new” translator service: a digital-to-digital replacement translator service (DTDRT) that will allow eligible full-power television stations to recover part of their digital “service area” lost as a result of the repacking process. The DTDRT will serve essentially the same role as the Digital Replacement Translator (DRT) service did in connection with the DTV transition, and will largely resemble the DRT overall (e.g., DTDRTs will not get separate call signs, will have “secondary” status vis-à-vis full-power stations, and will generally be subject to the technical rules governing TV translators). Eligibility for DTDRTs will be limited to full-power television stations reassigned in the repacking process that can demonstrate: (1) a loss of a portion of their pre-auction digital service area, and (2) that the proposed DTDRT will be used solely to fill in such loss areas. (Similar requirements existed for DRTs, but the FCC did not always analyze the showings.) Eligible stations will be able to file for DTDRTs, and will be given priority in FCC processing, beginning with the opening of the post-auction LPTV and TV translator displacement window and ending one year after the completion of the 39-month Post-Auction Transition Period. DTDRT permittees will be given three years to build, allowing them to have exclusive claim – and block others’ access – to those channels, regardless of the status of construction (or non-construction) during that period.

So Long, Analog Tuners. The Commission has finally announced the date that will mark the end of the requirement that all TV sets and other devices that receive TV signals include both analog and digital tuners. After August 31, 2017, analog tuners will no longer be required. The requirement has been kept in place, notwithstanding the 2009 DTV transition, because a significant number of LPTV/translator stations continue to broadcast in analog. However, that number is now down to about 38% of LPTV stations and 22% of translators. Plus, the newly-adopted transition deadline sets a (theoretically) hard date by which analog sets will not be needed at all. Unlike during the digital transition, the FCC will not require any labeling to disclose that devices have no analog tuner, nor will it require any notice or efforts to educate the public that analog reception will no longer be possible.

What the FCC Did Not Do. In addressing the post-repack fate of LPTV/translator stations, the Commission declined to adopt a number of proposals aimed at easing restrictions that constrain such stations and threaten their future. For example, one proposal would have allowed LPTV/translator greater flexibility in how they could use their spectrum. Such flexibility would have let them participate in the broadband market. The Commission’s refusal to consider this approach – which could have expanded considerably the availability of broadband, particularly in rural areas where broadband build-out costs are a daunting obstacle – is especially odd in view of the FCC’s urgent efforts to expand such service in precisely such places.

Another proposal rejected by the Commission would have allowed LPTV/translator stations to go dark now and to remain off the air until authorized to move to new channels (or until they know that they will not have to move), even if they remain dark for more than the one-year limit in Section 312(g) of the Communications Act. And a third proposal was to accord primary status to LPTV stations that survive the repack, or at least those that provide local or other unique broadcast services.

By providing opportunities that might attract new capital to the industry, any of these steps would have stemmed the financial drain that LPTV stations will be forced to bear while awaiting their post-repack fate. But the FCC is unwilling to loosen the leash now. Instead, it will require LPTV stations to try to stay alive subject to restrictions that limit entrepreneurial innovation far more strictly than rules that will govern the wireless entities that take over the TV spectrum LPTVs are forced to vacate.

The new rules will become effective after the Commission’s order is published in the Federal Register – except for Sections 74.787 and 74.800 (which create the new DTDRT service). Those two section have to be run past the Office of Management and Budget because they include “information collections” subject to the Paperwork Reduction Act. Check back here for updates on both fronts.