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By December 1, 2011, all commercial and noncommercial full power digital television (DTV) stations, as well as all digital low power, Class A, and television translator stations must electronically file an FCC Form 317 with the FCC. This Form reports whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2011. Under the Commission's Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis. Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.  If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service.

All full power DTV stations -- regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority -- must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. In addition, all licensees of digital low power television stations, digital television translator stations, or digital Class A television stations must also file a Form 317 by December 1st.  The Form 317 is brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the FCC's CDBS filing system. 

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By December 1, 2010, all commercial and noncommercial digital television (DTV) stations must electronically file an FCC Form 317 with the FCC. This Form reports whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2010.

Under the Commission's Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis. Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.

All DTV stations -- regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority -- must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service. The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the FCC's CDBS filing system.

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On Friday, the Commission released a Further Notice of Proposed Rule Making (FNPRM) seeking input on completing the transition of all low power television stations (LPTV) and TV translator stations to digital operations.  Driven by the transition of all full power TV stations last year and the guidance from the National Broadband Plan, which recommended setting a deadline of 2015 for the transition of LPTVs to digital in order to increase efficiency in the TV bands and assist in the reallocation of those bands, the Commission's rulemaking turns to the remaining analog television operations in the spectrum, i.e. LPTV and TV translator stations.  The Commission, having noted a significant increase in the past year of LPTV stations obtaining authority for, and actually switching to, DTV operations, concludes that "low power television stations should now begin to focus their time and resources on developing and implementing a digital conversion plan." 

In response to the main question of "when?", the Commission suggests a date in 2012 as the hard date by which all LPTVs and TV translators would have to complete the construction of digital facilities and cease analog operations.  While a specific date in 2012 is not offered, the Commission believes that three years after the June 12, 2009 full power transition should be a sufficient time period for completing the transition.  And of course, given that it is now September 2010, that really means that LPTV stations would have between 15 and 27 months from today to complete the transition.  The FNPRM does seek comment on alternative time frames or transition mechanisms, but notes that an adoption of an earlier transition date in 2012 might adversely impact some LPTV stations, which could "transition to digital only to find that their digital channel is no longer available as a result of the spectrum reallocation that is one of the recommendations in the Broadband Plan."  Such stations would then be forced to transition a second time.  Given that the Commission has not yet actually commenced a proceeding to implement the spectrum reallocation recommended in the Broadband Plan, this comment is a bit troubling.  Clearly, if the Commission is actually going to reallocate the spectrum as suggested in the National Broadband Plan, it should do so first before it mandates a DTV transition for LPTVs.  Or at the very least, it shouldn't mandate such a transition until it can ensure that LPTV stations are transitioning to digital on a channel that won't subsequently be reclaimed and re-purposed for a competing wireless broadband operation.  In acknowledgment of this, the FNPRM seeks comment on whether the analog termination date should be by the end of 2015 or after the "recommended reallocation of spectrum from the broadcast TV bands". 

Just as an aside -- and all television broadcasters should take careful note -- despite referring to it as the "recommended reallocation of spectrum from the broadcast TV bands", the Commission in this item repeatedly refers to the reallocation of TV spectrum in a way that implies that it is a given and not merely a recommendation in a white paper.

Separate from establishing a date for the ultimate transition of all LPTV stations to digital, the FNPRM proposes a transition date of December 31, 2011 for all low power television stations -- either analog or digital -- to cease operations on the out-of-core television Channels 52-69. These channels were long-ago reallocated (and in most cases auctioned off) for use by public safety and commercial wireless operations.  Although LPTV stations were allowed to continue in that spectrum on a secondary and temporary basis, the time has come to vacate those channels and find a new home.  To facilitate the transition, the Commission proposes that out-of-core LPTV stations be required to file a digital displacement application proposing an in-core channel by June 30, 2011.  Further, as of September 17, 2010, the Commission has imposed a filing freeze on 1.) applications for new analog LPTV stations and 2.) applications for new or modified stations in the 52-69 band, including flash-cut or digital companion channels. 

Among the other issues the FCC raises in the FNPRM is the question of how much the transition might cost a typical LPTV station. Ultimately, the transition of LPTVs may be challenging for many licensees. While some LPTV stations are network affiliates owned by large companies many, many others are licensed to community translator associations, independent operators, and minority owners serving rural areas or discrete communities in a larger urban market. Even with the assistance of the NTIA's (National Telecommunications and Information Administration) reimbursement program for LPTVs in rural communities, some licensees may decide to sell or surrender their analog licenses rather than bear the cost and effort of transitioning to digital. More information about the reimbursement program for the transition of LPTVs in rural communities to DTV is available on the NTIA's website here.  The Commission also seeks input generally on the outreach that would be required to educate communities and viewers about the transition of these remaining analog stations, and whether the Commission's consumer call center should be expanded or updated.  The FNPRM also suggests a 30-mile limit to the relocation of an LPTV's transmitter site, and that Class A stations would be able to retain primary, protected status on either their flash-cut digital channel or digital companion channel.  

Comments on the FNPRM will be due 60 days after the item is published in the Federal Register, with Reply Comments due 30 days after that. Interested parties should start preparing their thoughts now for their comments, and we'll keep you posted once the publication occurs and the date for comments is set.

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Interested in a brand new full power digital television station in Atlantic City, New Jersey, or Seaford, Delaware?  Then the FCC has just what you're looking for, provided that you're ready, willing, and able to build the station from the ground up and don't mind a low VHF channel.   The Commission today issued the first auction notice regarding Auction No. 90 for the auction of two new full power commercial television stations.  Having amended the DTV Table of Allotments earlier this year to drop in DTV Channel 4 at Atlantic City, New Jersey, and DTV Channel 5 at Seaford, Delaware, the Commission has moved quickly to the competitive bidding stage and starting the process to offer these new channels to interested parties.  Today's Public Notice is the first step in the auction process and seeks comment on the rules and procedures for the auction, including the proposed minimum opening bid amounts that it has set for each station, namely, $200,000.  The auction rules proposed by the Public Notice are consistent with those used in other recent broadcast auctions and don't really offer any surprises. The Commission does not propose a date for the proposed auction and that will be set by a future auction Notice.  Comments on the Commission's proposed auction procedures and minimum bid amounts are due by September 30th, with replies due by October 15th. 

By allocating and offering these new VHF channels for commercial television operations, the Commission is satisfying Section 331 of the Communications Act of 1934, as amended, which directs the Commission to allot at least one VHF TV channel to each state to the extent technically feasible.  Given the recent and ongoing debate over the possible reclamation of television spectrum or changes to the television interference protections,  it seems a bit counter-intuitive that the Commission is moving quickly to offer these two new full power TV stations, particularly in the (generally speaking) congested Mid-Atlantic Region.  Further, given the issues encountered by other DTV stations in operating on low VHF channels, Channels 4 and 5 may not be seen as prime spectrum, again particularly in the congested Northeast.  Both of those things said, however, a full power TV station is still a full power TV station.  And cable and satellite must-carry rights are hard to come by, not to mention the fact that the stations are located in Atlantic City, NJ and central Delaware, respectively.  So unless something radical happens in the next 12 months -- say like all consumers migrating to the consumption of television via the Internet instead of broadcast, cable, or satellite television -- it's likely that there will be a fair bit of interest in the auction of these two new stations.  

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The FCC today issued a Public Notice  instructing applicants for new analog low power TV (LPTV) stations to amend their pending short-form applications by May 24th in order to specify digital operations. If the short-form application is not amended by May 24th it will be dismissed.  As some of you may recall, way back in 2000 the FCC opened a window for the filing of new LPTV stations. Rather than full applications, at the time applicants were simply required to file a "short form" tech-box application specifying the basic parameters of the proposal.  And of course, at the time the proposals were all for new analog LPTV facilities. Over the years, many of these proposals were found to be non-mutually exclusive, and the applicant applied for and received construction permits for new LPTV stations.  Other proposals were conflicted and were included in an FCC Auction to resolve the conflict, which also resulted in the grant of new construction permits. Many others, however, remained mutually exclusive and deadlocked. The FCC has now decided that, as it will no longer grant any new analog LPTV stations, any remaining proposals that are still pending must be amended to specify digital operations. 

Today's action is consistent with the Commission's pronouncement made last Summer when it announced the opportunity to commence filings for new LPTV stations in rural areas (which we wrote about here).  At that time, the FCC stated that going forward it would grant only digital LPTV stations and not any new analog LPTVs.  It's unclear why today's Public Notice was not released last year once that decision was made, but in any event today's action would appear to be one more step towards the ultimate transition of all LPTV stations to digital operations, which was mentioned as part of last week's National Broadband Plan (which we discussed here).  While the Commission has not yet set a date for the transition of existing analog LPTV stations to digital, the Broadband Plan suggested accelerating that process to migrate all broadcast television to digital operations.  However, the Plan also suggested potentially repacking the television spectrum, encouraging the consolidation of television operations, and changing interference protections for teleivsion stations, so whether the Commission would move forward with requiring analog LPTV stations to convert to DTV without clarifying some of these new proposals and their impact on low power television stations is unclear.  One other observation:  with the potential conversion to digital operations looming, the days of analog LPTV stations operating on TV Channel 6 and broadcasting audio intended to be received by FM radios would appear to be numbered. 

Returning to today's Public Notice, because full applications have not previously been filed for the pending proposals listed in the Notice, the FCC is requiring that applicants now amend the short-form applications by filing a complete long-form application.  The Commission is also requiring that applicants pay the $705 filing fee required for a major change.  (Just as an aside, the FCC filing fee required for new LPTV stations or major changes to existing stations at the time these proposals were filed in 2000 was $570.) 

The good news is that given the time, cost, and hassle involved in preparing and filing a full application to specify digital and the $705 filing fee it is likely that many of the proposals listed in this Public Notice will not be pursued, meaning that they will be dismissed, potentially breaking the log-jam that has prevented these proposals from being granted thus far.  But there is no guarantee that the remaining proposals will become grantable as a result.  It is very possible that an application will continue to be mutually exclusive to other proposals, in which case an auction would still be required to resolve the conflict.  But if parties are at all interested in preserving the opportunity to get a new LPTV on these channels in these places, they will need to amend and pay the fee by May 24th to keep the application alive. 

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The FCC has wasted no time in pressing ahead with the discussion of whether the spectrum currently used by local broadcast television stations is being put to the greatest use and whether it should be "re-purposed" for the so-called broadband effort.  This afternoon, the FCC issued a Public Notice soliciting comments by December 21st regarding the demand for spectrum, the factors the FCC should review when considering the re-purposing of TV spectrum, and potential approaches to increasing spectrum availability and efficiency.  Although the Public Notice asks broad, far-ranging policy questions, the comment date for the "specific data" that the Commission seeks to obtain from interested parties is less than three weeks away, which hardly seems adequate for a proper, informed discussion on an issue of this magnitude.  The specific topics of discussion identified by the Commission and details about how to submit comments can be found in the Commission's Notice. 

Among the issues broadcasters will undoubtedly address (and indeed have already begun to address in other forums) is the fact that the forthcoming spectrum crisis -- which seems to have become a given in certain circles -- has not been well substantiated.  Related to that is the notion that broadcasters already have the ability to lease any "excess" digital television spectrum and use the capacity to provide broadband access, mobile services, or virtually anything else under the sun.  Stations will likely suggest that this mechanism will allow the wireless broadband market to tap this spectrum without further government intervention, if and when the demands of the wireless market require it.  Other issues sure to be of discussion is the value of local broadcast stations, the usefulness of free over-the-air broadcasting, the future of broadcast journalism, and the service stations provide to the public, just to name a few.   It will be challenging, to say the least, for commenters to quantify and address any of these significant questions within just 19 days. 

Having just completed the DTV transition six months ago, it seems that broadcasters have barely been given a chance to operate on their digital spectrum and to explore the options afforded by the transition in terms of high-definition, multicasting, data casting, broadband access, and mobile TV, just to name a few, before having to rush to defend its use, or lack thereof.  The Commission's rush to solicit comments is clearly guided by its need to develop a broadband plan early next year, however, the issues raised by today's Public Notice are among the most significant it has ever attempted to address, certainly with respect to broadcasting and mass media.  It goes without saying, but there is much, much more to be said about these issues, so stay tuned.   And see our earlier blog entries (including here) for further thoughts on the matter. 

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By December 1, 2009, all commercial and noncommercial digital television (DTV) stations must electronically file a FCC Form 317 with the Commission reporting on whether the station has provided any ancillary and supplementary services over their digital spectrum during the twelve-month period ending on September 30, 2009.

Under the Commission's Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis.  Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.

All DTV stations -- regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority -- must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service.  The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the CDBS filing system.

Some have noted recently in the ongoing debate regarding the future use of television spectrum (see our earlier blog) that Congress and the Commission have already given broadcasters the flexibility to use or lease their spectrum for virtually any purpose, so long as they continue to provide a free, over-the-air video programming stream, and remit 5% of the gross revenues derived from such ancillary services to the government.   Arguably then, the current rules already give broadcast stations the incentive and the ability to lease out any excess capacity to the highest bidder and for the marketplace to influence the optimal usage of the television spectrum.  And in exchange, the government will recoup a percentage of the revenue generated by such use of the spectrum.  So to the extent that parties seek to open the broadcast television spectrum to other possible uses and to ensure that the government benefits from the upside of such leasing, the rules for achieving that goal already seem to be in place.  Now it just remains to be seen whether there is a viable market for leasing television spectrum for such ancillary services.  To date, I think that the number of stations offering ancillary services, leasing their spectrum, and generating revenue from these ventures has been quite small. 

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This week, the FCC announced that it will begin accepting applications for new digital-only LPTV and translator stations in rural areas as of August 25, 2009. Beginning on that date, the FCC will also begin to accept applications for major changes to existing analog and digital LPTV and TV translators in rural areas, and applications for digital companion channels (DCCs) for existing analog stations in rural areas. By "rural areas", the FCC means stations that specify a transmitter site that is located more than 75 miles away from the reference coordinates of the 100 U.S. cities listed in the FCC’s Public Notice. Applications for new analog facilities will not be accepted. This filing opportunity will be on a first-come, first-served processing basis, and mutually exclusive proposals will be resolved by auction.  A copy of the FCC's Public Notice is available here.

While this window is for new stations, major changes, and DCCs in rural areas, prior to that date all existing LPTV, TV translator, and Class A television stations may wish to review their present options for converting to DTV. The Commission’s Public Notice reminds existing stations that they may file an application for on-channel digital conversion (i.e. flash-cut) at any time. In order to retain processing priority, existing stations are encouraged to file flash-cut applications prior to August 25th, and certainly by January 25, 2010, at which point the FCC will open the door for new digital licensing opportunities on a nationwide first-come, first-served, as discussed below. 

Accordingly, if existing stations do not yet hold a construction permit authorizing digital operations (or else have an application for such authority pending), they should consider filing for such authority now in advance of these upcoming filing opportunities.  Similarly, existing stations that wish to displace to an alternate channel, and which can comply with the FCC's rules for a displacement, should file for displacement authorizations prior to these dates.  FCC construction permits have a three year construction period.  So even if a station obtains a CP for a flash-cut conversion or for a displacement, it will have some time before it must implement that change.

Although the initial filing opportunity commencing August 25th is restricted to rural areas, the Commission will begin to accept applications for new digital-only LPTV and TV translators stations, major modifications to existing analog and digital stations, and, in the case of incumbent analog stations, for digital companion channels, without geographic restriction beginning on January 25, 2010. Once again the applications will be on a first-come, first-served basis, and no applications for new analog facilities will be accepted.

Again, existing stations are encouraged to review their plans for converting to digital and consider whether they need to file an application to flash-cut to digital on their current channel, or else displace to an alternative channel (assuming that a basis exists for displacing) prior to these upcoming dates.     

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This week ,the FCC issued a Public Notice addressing the issue of LPTV stations eager to displace to a new channel or switch to digital operations following the transition of full powers to DTV. (Please note, this notice does not address the filing of applications for brand new LPTV stations, which are still frozen). Many LPTV stations are eager to take advantage of the channels being returned by full power stations either to move their operations to those channels or to flash-cut to digital on their own channel now that an adjacent full-power station is gone.

In fact, some LPTV stations have already submitted applications seeking to move to a channel that is still occupied by a full power station, and which won't vacate the channel until June 12th. Because such applications did not comply with the then-current (pre-transition) interference landscape, they were not grantable at the time of filing, but will become grantable after June 12th. Similarly, many folks have their eye on a particular channel, and once the full power station terminates, the LPTVs will rush to move to that (now) vacant channel. The FCC's Public Notice states that for purposes of determining who filed first, the FCC will treat all such applications as though they were all filed on June 30th. Thus, there was no advantage to the LPTV station that filed for a channel last month that's still occupied by a full power, and there's no rush to be the first one to file for a newly vacated channel come 12:01 AM on June 13th.

What this means, however, is that if any LPTV station intends to take advantage of the full power DTV transition to displace to a newly vacated channel or to flash-cut to digital in a way that would be precluded because of pre-transition interference, any application filed between now and June 30th will be considered as filed the same day as any pending non-compliant application or application filed between now and the 30th that has a conflicting proposal.

This Public Notice does not appear to impact applications proposing changes that comply with the pre-transition interference landscape, which still can be filed at any time and should be processed on a first-come, first-served basis.

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On Tuesday, the FCC released a public notice reminding stations of their obligation to provide a consumer referral telephone number to the FCC and to publicize that number so that viewers will have a local number to call for specific information about the station’s transition to DTV.

In addition, the FCC also reminded stations that they should be prepared to answer calls from viewers in the hours immediately after their transition and in the days that follow. The FCC’s rules require that stations offer information and assistance for viewers having difficulty receiving their signal. Per the FCC:  The station’s consumer referral number "should be staffed with personnel prepared to answer complex questions from viewers, particularly regarding necessary actions to take to get reception in specific locations, and other engineering issues."  In particular, stations must be prepared and staffed for an increased volume of calls, both referred from the FCC’s National Call Center and locally originating, at the time the station terminates its analog signal.  The FCC’s Call Center will be available 24 hours a day for the days surrounding the June 12 transition, forwarding calls directly to stations where necessary.

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Further information from the FCC regarding the DTV transition, this time dealing with call signs. The FCC has announced that following the DTV transition, full power television stations may either keep their current call signs (i.e. WXYZ or WXYZ-TV) or they may formally change to use "-DT" instead, as in "WXYZ-DT".

Stations that intend to keep their current call signs do not need to take any action.

Stations that wish to use "-DT" must change their call letters using the Commission's on-line call sign reservation system. The change can be requested after the station has completed the permanent transition to digital service and there will be no charge for the call sign change.

For the handful of stations that are DTV-only stations, i.e. those that never had an analog channel, those stations have already been designated "-DT" and will retain that designation without any further action. If a DTV-only station wishes to switch from "-DT" to "-TV", it may file a call sign change request at no charge to make that change.

A copy of the FCC's recent Public Notice on this issue is available here, and a link to the FCC's call sign reservation database is here. 

 

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The FCC yesterday issued a brief Order clarifying that stations that are flash-cutting to digital on their analog channel, or are otherwise commencing digital service on another channel as part of the transition, have the flexibility to do so at any time on June 12th without further authorization from the FCC.

[Please note, this information does not affect stations whose pre-transition and post-transition digital channels and facilities are the same. Such stations can complete the transition by simply terminating their analog service.]

Currently, DTV construction permits that specify only "Post-transition" operations state that they can only be implemented after 11:59 PM on June 12th, meaning you could not begin operations until the stroke of midnight on June 13th.  With the FCC's recent clarification, however, stations are free to begin DTV operations whenever they are ready to go on June 12th.  This will hopefully allow stations to commence digital operations with less of a gap between the analog shut off and the digital commencement.  In addition, it will also allow stations the flexibility to commence operations on June 12th and work any bugs out during daylight hours.

Thus, for example, a station that is scheduled to shut off its analog facility at 10 AM on the 12th can begin DTV operations on that same channel at 10:01 AM instead of having to wait until after midnight.  The only caveat is for those stations whose early operation could affect another station (e.g., where Station A's post-transition channel is the same as Station B's channel for pre-transition).  In those cases, the FCC has instructed that the parties must coordinate with one another to ensure that the incumbent station terminates its service before the new co-channel station begins operation.  Again, no authorization is required from the FCC, but if the stations are not able to coordinate with one another, then they must wait until after 11:59:59 to commence post-transition operations.

In any case, once a station commences post-transition DTV operations consistent with their underlying construction permit, they will need to file a notification with the FCC, as well as a Form 302-DT covering license application to complete the process. 

 

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On Friday, the FCC released its further Report and Order addressing the termination of analog service between now and June 12th, and revising the current DTV Consumer Education Requirements.  Despite the apparent success of the February 17th turn-off of approximately one-third of the analog television stations in the country, the FCC has now ratcheted up the DTV Consumer Education requirements at the eleventh hour.  The FCC has expanded and revised its rules significantly, so stations should review the Commission's Order carefully and adjust their efforts and the content of their spots, crawls, etc., as necessary.  These new requirements will go into effect starting April 1st.  The full copy of the FCC's Order is available here, and a summary of the new DTV education requirements is as follows:

First, in one of the few moves to reduce the burden on stations, the FCC has eliminated the requirement for most stations to continue broadcasting DTV transition educational information after they have terminated analog service and are operating in digital only.  Thus, stations that have completed construction of their full-authorized, post-transition digital facilities and are operating exclusively in DTV do not need to continue with the general DTV Consumer Education announcements.

Second, for those stations that have not yet terminated analog, the FCC has expanded the DTV Education requirements in order, in the FCC’s words: “to ensure that consumers will receive the information they need to make proper preparations for the digital transition of the stations on which they rely for television service.”  Specifically, beginning April 1, 2009, the stations must comply with the following rules:

1. Loss Area Notices- If the FCC’s Signal Loss Report -- available here  -- predicts that 2 percent or more of the population in a station’s Grade B analog service contour will not receive the station’s digital signal, then the station must air service loss notices to inform viewers of exactly where (i.e. which communities or what sections of the market) an analog signal is received today, but won’t receive a digital signal after the transition. These notices are in addition to the existing consumer education requirements. The FCC estimates that there are 213 stations still operating in analog that will lose more than 2 percent of the current population when they switch to digital-only. Thus, stations should review the FCC's Signal Loss Reports and determine how best to convey information about "loss areas" (if any) to their viewers. For stations needing to air information about loss areas, the notices must be no shorter than 30 seconds and must be aired at least once per day between 8 AM and 11:35 PM. These spots are in addition to other on-air informational requirements.

2. Antenna Information- All stations must include information about the use of antennas as part of their consumer education campaign, including information concerning a station’s change from the VHF to UHF bands, and the need for additional or different equipment to avoid loss of service. Antenna info can be included in existing DTV consumer education efforts, such as in news programs and longer format pieces. Information must be provided at least once per day, in a message lasting at least 15 seconds, with at least three of those messages a week airing during prime time. 

3. Rescanning- All stations must include information in their consumer education campaigns to inform and remind viewers about the importance of periodically using the rescan function of their digital televisions and digital converter boxes. Rescanning info can be included in existing DTV consumer education efforts, such as in news programs and longer format pieces. Information must be provided at least once per day, in a message lasting at least 15 seconds, with at least three of those messages a week airing during prime time.

4. Phone Numbers and Consumer Help Centers- The FCC is now requiring that stations have and publicize "a telephone number that will serve to receive local consumer calls and consumer referrals from the FCC’s national Call Center." The FCC expects that the telephone number provided will be one that is staffed during business hours with personnel who are prepared to answer complex questions from viewers, particularly regarding necessary actions to take to get reception in specific locations, and other engineering issues. The FCC has noted that stations should be prepared for an increased volume of calls, both referred and locally originating, around important dates such as the date the station terminates analog, the date many other stations in the market terminate analog, and June 12. This telephone number may be operated and staffed by the station itself, by a group of stations in a market, or by a third party entity such as a state broadcasters’ association.

As part of its DTV consumer education campaign, every station must air notices providing the location and operating hours of walk-in DTV help centers in the station’s market area; the FCC Call Center telephone number and TTY number; and the station’s telephone number for receiving consumer referrals and calls from local viewers. This info can be included in existing DTV consumer education efforts, such as in news programs and longer format pieces. Information must be provided at least once per day, in a message lasting at least 15 seconds, with at least three of those messages a week airing during prime time.

5. Countdown Clock- The FCC has amended the 100-Day Countdown requirement and will require broadcasters subject to the Option Two consumer education rules to air a 60-day countdown to the date of their individual termination of analog service. Stations terminating on June 12th will begin the 60-day countdown on April 13th.  Stations that terminate prior to June 12th will begin counting down to their specific termination date earlier, but will not be required to begin their countdown until April 1st.

6. 30-Minute Video- The FCC will require broadcasters subject to Option Two of the consumer education rules to air a new, up-to-date 30 minute informational video before they transition. This video must include locally specific information, including information about the specific transition date for the station, any loss of service issues, and the dates when all of the other stations in the market are transitioning.

Finally, the FCC has revised the FCC Form 388, the DTV Quarterly Activity Station Report, to reflect the changes it has made to the DTV Consumer Education Initiative broadcaster rules in this Report and Order.  

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Perhaps not surprisingly, the FCC has suspended the re-start of the 100-day DTV Countdown Clock, which was to begin tomorrow.  In the FCC's own words:

"We find that it could be confusing for viewers to see a 100-day countdown beginning on March 4, only to see a different clock in the event that we revise the requirement soon thereafter. Therefore, we temporarily waive the Option Two requirement to air countdown information until the effective date of the relevant rule adopted in the pending rulemaking proceeding…"

Accordingly, those stations following Option Two of the FCC's DTV consumer education rules should NOT re-start the 100-day countdown clock until further notice.  A copy of the FCC's public notice can be found here.  Option Two of the consumer education rules is the option that most stations have elected to follow, and includes, among other things, an average of 16 spots per week along with 16 crawls, tickers, snipes, etc. per week.  All other consumer education requirements besides the 100-day countdown clock remain unchanged (at least for the moment).

 

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The FCC's Order and Notice of Proposed Rulemaking implementing changes resulting from the Congressional delay in the DTV transition deadline and seeking comment on a number of proposed rule changes has been published in the Federal Register.  Comments on the Commission's proposed rules, including changes to the transition procedures that would restrict the ability of television stations to terminate the analog operations, must be filed by Wednesday  March 4, 2009.  The Commission's rule making is on a fast track as it must be completed by March 13th.  Accordingly, interested parties should prepare and file comments quickly.  Comments can be filed electronically through the FCC's ECFS database found here.   

 

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Today FCC Chairman Kevin J. Martin released a tentative agenda for the scheduled December 18, 2008 Open Commission Meeting.  The tentative agenda, available here, contains a number of items that the Chairman has circulated to the other Commissioners for consideration at the upcoming Open Meeting.  Whether these items actually make it to the agenda for that meeting remains to be seen, as the formal agenda for the meeting will not be released until one week before the meeting.  Of particular interest to broadcasters are the following items:

• Program Carriage and Program Access-  A Report and Order modifying the program carriage rules and procedures and a Further Notice of Proposed Rulemaking seeking comment on the practices of programmers and broadcasters.

• DTV Translators-  A Notice of Proposed Rulemaking proposing a new digital television translator service for analog loss areas.

• DTV Consumer Education Notice of Apparent Liability-  An omnibus Notice of Apparent Liability against various companies for apparent violations of the Commission’s DTV consumer education requirements.

It is unknown whether the Notice of Apparent Liability for Forfeiture (FCC-speak for a fine) will include broadcast television stations, retailers, multi-channel video providers, or some combination of all three, but the fact that the FCC intends to fine parties for failing to comply with the FCC's DTV education rules is a strong indication of how seriously it is taking the DTV transition.   

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By December 1, 2008, all commercial and noncommercial digital television (DTV) stations must electronically file an FCC Form 317 with the Commission reporting on whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2008. 

Under the Commission's Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis.  Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.  Unlike in years past, this year all DTV stations -- regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority -- must file a Form 317 reporting whether it provided such services and generated any income.  If the station did provide such ancillary services, then the FCC wants to know about it.  More importantly, if the station generated revenue from the provision of such services, the FCC wants its 5% cut of the gross revenues derived from such service.  The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the CDBS filing system.  

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As broadcasters are aware, earlier this year, the FCC imposed DTV Consumer Education requirements mandating that television stations and other video providers educate viewers about the upcoming transition from analog to digital television (DTV).  Thus far, the education efforts have consisted primarily of Public Service Announcements (PSAs), crawls, and longer format programs designed to educate the public about the February 17, 2009 switch to DTV.  Now that stations are approaching the home stretch, however, the FCC's rules require additional efforts.

Specifically, for those stations that elected to follow “Option Two” of the DTV Consumer Education requirements -- which seems to be the vast majority of television stations -- beginning on November 10, 2008, television stations must begin a "100-Day Countdown" to the transition consisting of enhanced efforts leading up to February 17, 2009.  During this period, each station following Option Two must air at least one of the following per day:

Graphic display:  A graphic super-imposed during programming content that reminds viewers graphically there are “[X] number of days” left until the transition, and that visually instructs viewers to call a toll-free number or to visit a web site for further details.  The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.

Animated graphic: A moving or animated graphic that concludes with a countdown reminder, which will remind viewers that there are “[X] number of days” until the transition. Viewers are to be visually instructed to call a toll-free number or to visit a website for details.  The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.

Graphic and audio display: Either a graphic display or animated graphic along with an added audio component.  The duration may vary from 5 to 15 seconds, at the discretion of the station.

Longer form reminders: Stations may choose from a variety of longer form options in order to communicate the countdown message.  Examples might include an “Ask the Expert” segment in which viewers can call in to a phone bank and ask knowledgeable people questions about the transition.  The length of these segments can vary from 2 to 5 minutes, at the discretion of the station.  (Some stations may also choose to include during newscasts DTV “experts” who may be asked questions by the anchor or reporter about the impending Feb. 17, 2009, deadline).

With this 100-Day Countdown, the Commission hopes to push strong to the finish line and build viewer and consumer momentum for the final switch to digital on February 17th.  The FCC has been paying close attention to station compliance with the DTV Consumer Education requirements and stations are advised to start planning now for their 100-Day Countdown efforts.  One additional note, stations that have elected to follow Option Two should also be sure to air at least one longer form program (at least 30 minutes in length) if they have not done so already.   At least one such program must be run between the hours of 8:00 AM and 11:35 PM prior to February 17, 2009.  

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The FCC has released a Public Notice reminding TV stations to update their FCC Form 387 DTV Transition Status Reports by October 20, 2008.  If you will recall, these Reports were filed by stations earlier this year (and updated in July) outlining the steps remaining for the stations to complete the transition to DTV.

As we're now coming down the home stretch, stations that have not already completed the transition to digital must once again update their status reports.  Specifically, stations that by October 20th have not filed a covering license application and notified the FCC that they are operating with full and final DTV facilities must update their Form 387 DTV Status Report by October 20.

A copy of the Public Notice is available here.  Stations should make sure that the Form 387 provides:  (1) the station's detailed plan for the remaining steps in the transition, (2) dates for completion of construction and commencement of full, final DTV operations, and (3) plans for terminating existing service (e.g., reduction or termination of analog or pre-transition digital service).  All stations that have not completed their full and final DTV facilities by October 20th need to review the status of their DTV transition and update the Form 387 accordingly.

In addition, stations are reminded that the Commission's DTV Orders contain specific rules regarding the early termination or reduction of analog service.  In particular, stations that intend to permanently reduce or cease analog operations prior to November 19, 2008, must have obtained authority from the FCC to do so and must have aired the appropriate viewer notifications.  For stations intending to permanently reduce or cease analog operations after November 19th, but before the February 17, 2009 switchover do not require prior FCC approval, however, the station must give the FCC 30-days advance notice, and must also air 30 days of viewer notifications letting the audience know that the analog will be terminated early.  Stations should also include this information in their Form 387 reports so that the FCC knows when the station intends to permanently terminate their analog service.

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 As the digital television transition continues to progress, the FCC has been pursuing not only broadcasters who have been slow in building out their digital facilities, but also consumer electronic manufacturers who have not done enough to facilitate the transition. In a letter released this week, Chairman Martin has by letter urged consumer electronics retailers to stock inexpensive converter boxes that will pick up digital signals and allow analog television sets to broadcast those signals, keeping those sets from becoming obsolete. Also, the FCC recently entered into a consent decree agreeing to a fine for Sling Media for not including a digital television tuner in some of its equipment, reminding all consumer electronics manufacturers, including those who install them as an adjunct to their technology, of the need to include such tuners in their equipment.

The issue of the digital converter boxes is an interesting one. When NTIA started issuing coupons to consumers to subsidize their transition to digital, it was hoped that the $40 coupons that consumers would receive would come close to covering the entire cost of the converter box necessary to keep an analog set operational. In fact, in most cases, the boxes have cost more than $40, requiring the consumer to pay at least some of the cost of the box. What has been particularly frustrating has been the announcement that Echostar, the satellite television provider of the Dish Network, had manufactured a highly rated box that would be available at $40, and would also include the ability to “pass through” analog signals – to continue to receive analog as well as digital signals – a particularly important property in markets where there are LPTV or TV translator stations that will continue to operate in analog after the February 17, 2009 deadline for the digital conversion of full-power television stations (see our post here on that issue). However, as the Chairman's letter makes clear, that box and boxes like it are not available in most consumer electronics stores. Thus, the Commission has urged retailers to stock such devices in these final months before the digital cut-off so that no one is left behind. 

The Sling case resulted in a $42,500 to the manufacturer of the SlingBox device that takes a TV signal and transmits it over the Internet to the owner’s computer, wherever the user may be – so that he or she can keep up with their local TV programs. One might not think of these sorts of high-tech devices as having television tuners, but this action reminds all manufacturers of any sort of consumer electronics equipment that they, too, need to be prepared for the digital transition.  The Commission also released two other fines to companies for failure to have digital tuners in devices that pick up TV signals (here and and a second, here, requiring a manufacturer to make sure that receivers without digital tuners that are exported are not returned and resold in the United States unless they have digital tuners).  These actions are all aimed at assuring that the digital transition occurs with as little disruption as possible next February, and make clear that all manufacturers must meet the DTV receiver requirements.

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On Monday, the President signed into law a bill adjusting the reimbursement dates of the Low Power Television grant program by which LPTV and TV translator stations can seek a $1,000 grant in order to ensure that they are able to continue to receive and rebroadcast the signals of primary full-power television stations once the full-power stations complete the transition to digital television.   In late 2007, the government announced the start of the LPTV Digital-to-Analog grant program designed to help translators and low power television stations continue their analog broadcasts after the February 17, 2009 conversion of full-power television stations to DTV.  Specifically, the LPTV Digital-to-Analog Conversion grant program will provide funds to eligible translators and LPTV stations that need to purchase a digital-to-analog converter box in order to convert the incoming signal of a full-power DTV station to analog format for retransmission on the analog LPTV station.  The program has been funded with a total of $8 million, which is available in $1,000 grants to eligible LPTV stations.  As a result of the recent change, funds granted through the LPTV Digital-to-Analog grant program will available beginning in fiscal year 2009 (Oct. 1, 2008 – Sept. 30, 2009), rather than in fiscal year 2011.  In addition, the recent bill also extends the availability of funding through fiscal year 2012.

Any low-power television broadcast station, Class A television station, television translator station, or television booster station that meets the following three criteria may apply for the grant to defray the cost of the digital-to-analog converter box:

1. It is itself broadcasting exclusively in analog format;
2. It has not purchased a digital-to-analog conversion device prior to February 8, 2006; and
3. It is (or will be) re-transmitting the off-air digital signal of a full-power DTV station.

Applications for this grant program are being accepted until February 17, 2009.  Priority compensation will be given to eligible LPTV stations licensed to 501(c) non-profit entities or LPTV stations serving a rural area of fewer than 10,000 viewers.  Thus, priority is given to stations owned by translator associations and others that might not otherwise be able to afford the costs of converting the signals that they receive from analog to digital, and which might, without the grants, go off the air.  More information on how to apply for such grants is available on the NTIA’s website here.   

We have previously written about the unique concerns about the DTV transition for LPTV and TV translators.  In particular, many have expressed concerns that non-profit translator associations and other community groups that are the licensees of rural translators which bring over-the-air television service to isolated communities - particularly those in the West - may not be ready for the DTV transition.  Many of these associations, funded either by local governments or voluntary contributions, are strapped for funds to even pay the electricity bills to keep the translators in operation.  Having these funds from the NTIA available to buy the equipment necessary to down-convert the DTV signal of a full-power station may be crucial to continuing television operations in these communities.  Full-power television operators whose signals are retransmitted by these rural translators should take the initiative to alert these rural organizations about the availability of these grants, so that they are not otherwise overlooked by the persons responsible for the translators - people who very well may not be reading the trade press or other sources of publicity about the availability of these funds.

In addition, wholly apart from the grant program discussed above, which merely ensures that analog LPTV stations will be able to continue to receive and convert the digital signal of a DTV primary station, the government also has plans for assisting LPTV stations to themselves convert to digital operations.  Under this program, grants will be provided to assist LPTV stations and translators to buy the equipment to themselves convert to digital operations.  As these stations do not need to convert to digital by the February 2009 deadline that applies to full-power stations, the delay in rolling out these funds may not be crucial, especially to rural translators outside the service area of full-power stations.  In these isolated areas, as viewers will not need to have digital receivers to watch local full-power stations, so they can continue with their current analog televisions until the local translators are converted.  In larger markets, where full-power stations exist, viewers who buy over-the-air digital receivers may lose the ability to watch LPTV stations or TV translators who do not operate in digital after the February 2009 deadline, so these conversion funds may come only after-the-fact.  Details about that program will be forthcoming from NTIA, hopefully later this year. 

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The FCC has released a Public Notice reminding TV stations to update their FCC Form 387 DTV Transition Status Reports.  If you will recall, these are the Reports filed by each station in February of this year outlining the steps remaining for the station to complete the transition to DTV.  Stations are under an obligation to update that status report as circumstances warrant, and also by October 20, 2008.

Now, however, the FCC needs to prepare a status report of its own, so it has requested that all stations update their Form 387 by no later than July 18, 2008, which is next Friday.  The Public Notice states that:  “Stations should report any significant changes to the information contained in their original DTV Transition Status Reports including a change in the station’s (1) transition plans, (2) construction or operational status or (3) existing service (e.g., reduction or termination of analog or pre-transition digital service). In addition, stations should report if they have filed (1) an application for extension of time; (2) an application for digital construction permit; (3) a request to reduce or terminate analog or digital operations; and/or (4) a petition for rulemaking to change their post-transition DTV channel.”   A copy of the complete Public Notice is available here. 

Accordingly, stations will need to review the status of their DTV transition and their plans for between now and February 17, 2009, and update the Form 387 by Friday, July 17th.  At the very least, stations migrating back to their current analog channel or else flash-cutting to digital on their current analog channel will need to reflect the fact that they have now obtained a construction permit authorizing that modification of the station’s facilities .  Alternatively, for those few stations that have nothing new to report, there's no need to file anything.

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With the Digital Television conversion date only eight and a half months away, the end game is beginning.  The FCC has announced that Wilmington, North Carolina will be a test market for the digital conversion, going all-digital on September 8 (or almost all digital, as the local NPR affiliate is not planning to turn off its analog signal, and one LPTV station will continue to operate in analog).  This will provide the FCC with an opportunity to determine what will really happen when the digital transition occurs in February of next year.  What will the FCC learn from this early test?  In the statement of Commissioner Copps at a recent town hall meeting held in Wilmington to address the digital conversion, some of the issues to be watched were set out.

Essentially, the Commissioner identified four different broad categories of issues that would be considered.  They are:

• Technical issues - will the DTV signals provide adequate service to their communities?  Will the converter boxes be able to receive the signals with "rabbit ear" antennas, or will there be reception problems
• Will consumers have received the word about the transition, or are there certain groups that will be particularly hard-hit by the transition, missing out on vital information about that transition?
• How will various partnerships work?  The Commissioner identifies partnerships between various industry, government and community groups to distribute news about the transition, but there are also partnerships between stations and multi-channel video providers (cable and direct broadcast satellite) that need to be worked out
• The unknown - what other issues that are not anticipated will arise?

As set forth below, many of these issues have been receiving extensive press coverage in recent weeks.

Last week, a Washington Post article addressed some of the practical problems with the digital conversion, identifying many of the problems that others have identified before, such as the fact that the digital signals are subject to breaking up when received on rabbit ears when there are people walking around a room, or airplanes or trucks passing near the house.  A similar article ran last month in the New York Times.  I have personally experienced the issue, having bought a digital converter box last weekend to hook up to an analog TV set.  Even though, from the second story of my house I can see some of the TV towers when there are no leaves on the trees, a TV on the first floor, which picked up digital signals clearly when there was no movement, would break up into pixels when there were people moving in the room.  A second floor TV with a better antenna had fewer issues.  But these problems will no doubt be faced by consumers as the transition occurs, and stations need to be prepared to address them with their viewers.  The Wilmington test will provide ideas on how bad the problems will be, and how great a consumer outcry will occur.

Last week, the New York Times also reported on a recent study that addressed the number of homes that were unprepared for the transition.  The report stated that 25 million homes have sets that won't work after the digital transition, and 10 million are completely unprepared for that transition.  While the Times report seemed to regard these figures as ominous, as television stations are only now beginning to really alert consumers about the transition, these figures may not be of as much concern as the article seems to imply.

Efforts are now being made by organizations across the country to educate the public about the transition.  Not only have the FCC rules requiring consumer education efforts by broadcasters, cable companies, and consumer electronics stores, about which we wrote here, been adopted, but voluntary efforts are underway around the country.  The NAB, the FCC, the consumer electronics companies, all sorts of community organizations and broadcasters themselves are conducting educational efforts all around the nation.  The FCC itself is conducting a seminar on converter box issues on June 19, and hosting another on May 28 sponsored by the NAB and DC's Congressional representative, Eleanor Holmes Norton.  Similar seminars are being conducted across the country.

Partnerships between broadcasters and multichannel video providers, to ensure that all are ready to "flip the switch" at the same time are also necessary.  And, as we wrote here, there is also a need for broadcasters to coordinate with each other to make sure that conversions which are contingent on each other are coordinated.  Industry organizations are working with stations to ensure that they work out these issues.

So, while there is much to do before the transition, the Wilmington experiment should help to clarify many of the issues that are to be resolved.  It will be interesting to see what is learned in Wilmington.  Whether it will be interesting to be in Wilmington when the conversion occurs remains to be seen.

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The FCC today released a Public Notice stating that their DTV Consumer Education rules will go into effect on Monday, March 31, when they are published in the Federal Register. Thus, broadcast television stations need to immediately be prepared to start complying with these rules.  These rules require that broadasters pick from a set of three plans setting out very specific consumer education activities.  Under Option 1, the option which originated from the FCC, PSAs about the transition would need to start running immediately - 4 spots a day on Monday, and 8 a day on Tuesday, April 1.  We expect that most stations will follow Option 2 - the NAB plan - as it provides more flexibility. But even under the NAB plan, you will need to be running at least 16 30-second PSAs and 16 crawls, all providing information about the transition, during the coming week.  Noncommercial stations also have a third option.  For specific information on the requirements, see our memo on the requirements of the new rules, or review the full Commission order, here.

On April 10, stations will also need to file the new Form 388 for the first time.  On this form, stations will need to specify which of the Options they are selecting (an irrevocable option).  Stations will also need to detail the consumer education education efforts that they have engaged in over the previous quarter - which obviously would have been voluntary efforts prior to the effective date of the new rules on Monday.

The Commission has also set cable outreach efforts - requiring, among other things, information about the digital transition to be included in consumer bills.  Our firm has prepared a memo detailing those obligations, which is available here.

With the new rules going into effect next week, broadcasters and cable companies need to comply immediately.  Of course, every station will want to educate the public as to how they can watch the stations on February 29, 2009, but the Commission is requiring that this education be in the specific manner that they direct.  So begin these efforts next week.

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In recent weeks, Low Power Television stations have been the center of attention in Washington in connection with the Digital television transition.  While all full-power television stations are set to convert to digital operations less than a year from now, ceasing analog operations at the end of the day on February 17, 2009, there is no specific deadline for LPTV stations to convert to digital.  As the NTIA rolls out its coupon program for the purchase of converter boxes that will take digital signals of over-the-air television stations and convert them to analog for those who do not have digital television receivers (see our summary here), LPTV advocates noted that many converters do not pass through analog signals.  Thus, once a television is hooked up to a converter box, that television will not be able to pick up stations broadcasting in analog - so many unconverted LPTV stations after the conversion date will be denied access to television receivers.

Suggestions have been made that the converter boxes be reconfigured to pass through analog - unlikely as many of the boxes have already been manufactured and are on their way to stores (note that some converters do pass through analog signals, but a consumer needs to look for those boxes).  LPTV advocates have also asked for some form of cable must-carry during the transition process - a proposal sure to be opposed by cable system operators. 

The deadline for LPTV conversion is also in question.  A number of proposals have been made to allow these stations to keep operating in analog through 2012, as Federal funds to assist them in the digital conversion may be available, but not until 2010.  Of course, by then most viewers will have been watching digital television for years, so many LPTV stations may have made the conversion voluntarily well before that date to stay in tune with the viewers.

The final issue that we'll be seeing more of is the classification of more LPTV stations as Class A TV stations.  LPTV stations are generally secondary stations, which can be knocked off the air when a new full-power station starts broadcasting or when one improves its facilities in such a way so as to create interference to the LPTV.  A Class A station is not secondary, but instead must be protected by new stations or the increases in power of full-power stations.  Class A stations were created in a one-time window years ago, by demonstrating that they originated local programming and otherwise observed all of the rules followed by full-power television stations.  The Commission has discussed the possibility of allowing more stations to qualify as Class A stations, which will become more important as the freeze on modifications to full-power stations and on requests for the allotment of new full-power TV channels expires later this year once the final details of the digital transition have been set. 

Watch for all of these issues to be addressed in the near future, as the final digital transition details are set.

 

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On the last day of 2007, the FCC released its Third Periodic Review of the Digital Television rules and policies, providing the rules and procedures that TV stations must follow in their final transition from analog to digital operations.  This transition leads up to the February 17 deadline when all television stations must cease analog broadcasting and operate full-time in digital.  We first summarized that order here.  Now that the order has been published in the Federal Register, and deadlines and filing dates have become fixed, our firm, Davis Wright Tremaine, has published a more complete summary of the DTV transition rules.  The advisory containing that summary can be found here.  Read it and prepare for the hectic year before the digital conversion is complete.

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The Commission's DTV Third Periodic Review adopting the rules and procedures for moving television stations through the end of the DTV transition was published in the Federal Register today, meaning that almost all of the new rules and forms adopted by the Order are now effective.   Now that the majority of the new rules are in effect, several related filing dates have been established.  As expected, this evening the FCC released its Public Notice notifying stations of several deadlines and summarizing some aspects of the Commission recent DTV Order. 

First, the FCC Form 387 DTV Status Report is now available and can be filed electronically through CDBS.  Consistent with the Third Periodic Review, all television stations, even those that have built and licensed their post-transition DTV facilities, must file a DTV Status Report on FCC Form 387 by February 19th (the FCC gave one extra day due to the federal holiday).

Second, as part of the final push to digital many television stations need to obtain a construction permit for their post-transition facilities.  In order to avail themselves of expedited processing, stations must file their Form 301 or Form 340 construction permit applications by March 17th (45 days from today).  If stations 1.) file their applications before March 17th, 2.) the application does not expand the station’s facilities beyond its final post-transition DTV Table Appendix B facilities, and 3.) the application specifies facilities that match or closely approximate the DTV Table Appendix B facilities, then the FCC has said that it will expedite processing of the application, generally acting on such applications within ten days. 

Third, the FCC has imposed deadlines by which stations that need to obtain a construction permit for their post-transition facilities must file their construction permit applications.  Stations with an August 18, 2008 construction deadline must file a CP application no later than March 17, 2008.  Stations with a February 17, 2009 deadline must file a CP application no later than June 19, 2008.

The particular steps necessary for a station to complete the DTV transition by the February 17, 2009 end of analog broadcasting will vary depending on the station, but now that the new rules and forms are in effect stations are urged to begin preparing their applications immediately.  See our earlier posting for more details about the Third Periodic Review and the specifics about how stations will complete the DTV transition. 

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Burt Braverman of the DC Office of Davis Wright Tremaine will moderate a panel titled Digital Television (DTV) Is Coming at the Future of Television Conference to be held in New York on November 8 and 9.  The panel will also feature representatives of the National Telecommunications and Information Administration, the National Association of Broadcasters and the Consumer Electronics Association.  David Oxenford and Brendan Holland of DWT's DC Office also plan to attend the Conference.

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Late Tuesday night, in a meeting originally scheduled to start at 9:30 in the morning, the FCC adopted an order establishing the rules governing the carriage of broadcast signals by cable operators after the February 17, 2009 transition to digital television.  While the full text of the Commission’s action has not yet been released (and may not be released for quite some time), based on the FCC’s formal news release and the statements made by the commissioners at the meeting and in their accompanying press releases, we can provide the following summary of these important FCC actions.

First, for a period of at least three years after the February 17, 2009 transition from analog to digital broadcasting, cable operators will be required to make the signals of local broadcast stations available to all of their subscribers by either:  (1) carrying the television station's digital signal in an analog format, or (2) carrying the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content.  This rule reflects a compromise position offered by the National Cable & Telecommunications Association, and is regarded as less burdensome on cable systems then the FCC's original proposal of an indefinite analog carriage obligation. 

Second, the FCC reaffirmed its existing requirement that cable systems must carry High Definition (HD) broadcast signals in HD format, and further that it must carry signals with “no material degradation”, i.e., with picture quality as good as any other programming carried by the operator.  In affirming its "no material degradation" standard, the FCC rejected a proposal by the broadcast industry that would have required operators to pass-through all of the bits in digital television broadcast signal.

Third, the Commission also voted at its open meeting to again extend for five years the existing prohibition on exclusive distribution agreements between cable operators and cable-owned programming networks, and to require disclosure to program-access complainants of certain network affiliation contracts.  Finally, the FCC adopted a Notice of Proposed Rule Making (NPRM) commencing an inquiry into the alleged wholesale “tying” of marquee programming with less desirable or unwanted program services, which some think may also provide a segue into the issue of a retail “à la carte” programming mandate for cable operators.

Further details about these new rules and the new inquiry into the tying of programming can be found in Davis Wright Tremaine's recent bulletin, which is available here.  We will keep you posted and provide more details once the text of these decisions becomes available.

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The FCC announced today that the Office of Engineering and Technology will be hosting a meeting to describe and discuss the findings announced recently regarding the testing of prototype equipment proposed for use in the so-called TV "white spaces".  As we reported yesterday, the FCC's Office of Engineering and Technology recently issued two reports finding that the prototypes of these TV white spaces devices that had been made available for testing appeared to interfere with television signals.  The FCC has asked for comment on its reports, with initial comments are due by August 15, and reply comments due by August 30.  

Given the significance (and contentious nature) of the issue, the Commission has now announced that it will hold a meeting to answer questions, provide an overview of the tests it conducted, and consider suggestions for further testing to evaluate the performance of TV white space devices.  The FCC's meeting will be held on Thursday August 16, 2007 at 1 PM at the Commission’s testing lab in Columbia, Maryland.  Parties interested in attending the meeting should send an e-mail to Patricia.Goff@FCC.gov, identifying the organization and how many individuals plan to attend.  According to the FCC, space is limited.   A copy of the FCC's public notice with the full details is available here. 

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Late Monday, the FCC released the Seventh Report and Order and Eighth Further Notice of Proposed Rule Making in the DTV proceeding.  This Order adopts the final DTV Table of Allotments and establishes the post-transition channels for all full-power television stations in the country.  This Table of Allotments is the culmination of a several-year process by television stations to elect the channel they wish to keep for future operations, and the channel they wish to return to the FCC following the switch to DTV on February 17, 2009.   The FCC confirmed that this is a hard, statutory and nonwaivable deadline, and that all analog full power stations will have to cease broadcasting on that date.   The deadline does not apply to low power stations and translators, however, which may continue analog broadcasting beyond that date.  The FCC said it would deal with the low power TV transition to DTV at a later date.

A copy of the Order (including the new Table) is available here.  Licensees are encouraged to double-check the information listed for their stations, as this Final DTV Table will become gospel for digital television stations going forward.

In addition, partially as a result of its release of the DTV Table, the FCC yesterday extended by one week the deadline for submitting comments in response to the Commission's Notice of Proposed Rule Making (NPRM) regarding the next steps in the DTV transition.  Comments are now due by August 15th, and Reply Comments by August 30th.  A copy of the full NPRM can be found here. Given that this proceeding will establish the details for the final push to digital broadcasting by February 17, 2009, broadcasters should be sure to review the the NPRM and consider filing comments.

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