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. 

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.

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". 

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.

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.  

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. 

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. 

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. 

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.

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. 

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.     

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.

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.

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. 

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.  

• 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.   

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.  

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.  

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.

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.