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The Commission's recent Order establishing the rules and time line for low power television stations to convert to DTV has now been published in the Federal Register, meaning that most of the new rules regarding the conversion of low power television stations to digital television are now in effect.  As we wrote about extensively here,on July 15, 2011, the FCC adopted a Report and Order regarding the transition of low power television stations (LPTV), TV translator, and Class A low power stations to digital.  As set forth in that Order, September 1, 2015 will be the hard date for the conversion of all remaining analog LPTV stations to digital. The Order adopts the specific procedures, rules, and timing of the digital conversion for those stations, and with Friday's publication in the Federal Register, those rules are now in effect, with two exceptions.  The extension of the "ancillary and supplementary" rules to LPTV permittees operating pursuant to an STA is still awaiting OMB approval, as is the requirement that stations that have not yet taken steps to convert to digital must notify the FCC of their digital transition plans.  This second requirement will force stations to consider their digital future and share their transition plans with the Commission.  Once the OMB approves the collection of information inherent in that requirement, that part of the new rules will go into effect, and the FCC will announce the timing and requirements by a further public notice.

The FCC's DTV LPTV Order also established December 31, 2011 as the deadline for all LPTV and TV translator stations operating on out-of-core channels -- that is Channels 52 to 69 -- to cease operation. Any station that operates outside the core that does not already have a construction permit for a core band operation must file for a construction permit for the core band by September 1, 2011. Given that today is August 30th, hopefully out-of-core stations have their ducks in a row and are already on file, or preparing to file displacement applications to move into the core.  The FCC states that there will be no hardship extensions of the December 31 deadline – meaning that such stations must terminate operations no later than December 31 of this year no matter what. 

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The Commission's recent Notice of Proposed Rule Making proposing a framework and time line for the transition of Low Power Television stations to digital operations -- which we wrote about last month here -- was published in the Federal Register today setting December 17, 2010 as the deadline for Comments and January 18, 2011 as the deadline for Reply Comments.  Interested parties should start preparing their comments now.  One continuing issue commenters should be aware of is the possibility of a television spectrum incentive auction or some other reclamation of television spectrum.  In seeking comment on the timing of the transition of LPTV stations to digital, the Commission has asked whether it makes sense for LPTVs to transition sooner rather than later and possibly face the need to reshuffle if the spectrum is compressed or otherwise reconfigured in the future, or alternatively, if LPTVs wait until the spectrum is settled before a DTV transition is mandated.  Comments on that issue and any others responsive to the Commission's NPRM are welcomed from all interested parties.  Comments can be filed in paper with the Commission or electronically through the ECFS filing system.  The proceeding has been designated as MB Docket No. 03-185.

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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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As we anticipated, the FCC has suspended indefinitely the opportunity to apply for new, digital low power television (LPTV) stations in non-rural areas, which had been slated to begin on July 26, 2010.  Given the FCC's new focus on repacking and reallocating the television spectrum for use by broadband competitors, the Commission's postponement of the filing opportunity is not unexpected.  In fact, based on the fact that the filing opportunity had been extended once already -- from January of this year to July -- it was a fairly safe bet that the window would be closed before it even opened once the National Broadband Plan was released in March.  It would seem to be counter-intuitive to put more stations into the spectrum that you are working to (potentially) reclaim or repack.  And that's just what the FCC thought as well, as they have now postponed "until further notice" filings for new digital LPTV stations in non-rural areas. 

Although it will not accept any applications for brand new digital LPTV stations in non-rural areas on July 26th, the Commission will permit existing LPTV, TV translator, and Class A television stations to file applications seeking digital companion channels in communities nationwide beginning on July 26, 2010.  In addition, parties may continue to file for new digital LPTV stations in rural areas, as well as file applications to flash-cut to digital on their current channels.  A copy of the FCC's Public Notice is available here. 

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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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This afternoon the FCC announced that it would postpone the opportunity to apply for new digital low power television stations until July 26, 2010. The Commission had begun accepting applications for new digital LPTV stations in so-called rural areas beginning in late August, and had previously announced that it intended to expand the first-come, first-served filing opportunity to the rest of the country starting January 25, 2010.  The Commission has now pushed that date back by six months, allegedly to allow it more time to process the applications that it has already received thus far, and also to allow the “Commission staff to dedicate additional time and resources for consideration of the Broadband Plan.”  It is not clear whether this statement literally means that engineers from the Low Power branch of the Video Division of the Media Bureau have been assigned to assist with the Broadband Plan, or if the FCC is simply hesitant to issue permits for more new LPTV stations until it figures out the future of broadcast television.  Either way, the Commission has decided to step back from accepting applications for new digital LPTV stations, at least for now.  A copy today's public notice can be found here. 

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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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In several decisions released on Friday (here, here and here), the FCC fined Class A TV stations for not meeting their obligations under the Children's Television Rules to notify their viewers about the location of their public file containing information about the educational and informational programming they broadcast directed to children, and for failure to inform local program guides of the target ages for this educational and informational programming.  Class A TV stations are essentially LPTV stations that, early in the decade, were certified for Class A status, meaning that they cannot be displaced by subsequent authorizations for new full power stations or changes in the facilities of full power TV stations. These stations had to certify that they broadcast at least three hours of local programming per week, and also had to meet all the other obligations that are applicable to full power stations (but not necessarily to other Low Power Television Stations), e.g. local main studio, local public file, children's television obligations.  A fine of $4000 was imposed on the stations for these failures.

The cases remind Class A stations of their public interest obligations.  It also reminds all stations of their obligations to publicize the existence of its children's television compliance records, and to insure that program guides not only know about their educational and informational programming but also about the ages to which this programming is targeted.  Little details, but details that cost many licensees money for their forgetfulness during the last license renewal cycle. 

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The Digital Television conversion has allowed the FCC to reclaim significant portions of the TV spectrum for wireless and public safety uses - television channels above 51 will no longer be used for broadcast TV at the end of the analog to digital transition.  But, as part of the FCC's Diversity proceeding (see our post here), a proposal dealing with the other end of the TV spectrum is being considered - whether to remove Channels 5 and 6 from the television band and instead use these channels for FM radio.  These channels are adjacent to the lower end of the FM band.  Because of this adjacency, the existence of TV Channel 6 in a market can limit the use of the lowest end of the FM band (used for Noncommercial Educational stations) to avoid interference to the TV station.  Similarly, Channel 6's audio can be heard on many FM radio receivers, a fact that has recently been used by some LPTV operators to use their stations to deliver an audio service that can be received by FM radios (see our post on this subject).  In comments filed in the Diversity proceeding, parties have taken positions all across the spectrum - from television operators who have opposed using the channel for anything but television, to those suggesting that the channels be entirely cleared of television users and turned into a digital radio service.  Proposals also suggest using the band for LPFM operations, and even for clearing the AM band by assigning AM operators to this band to commence new digital operations.

In comments that our firm submitted on behalf of a group of noncommercial FM radio licensees who also rebroadcast their signals on a number of FM translator stations, we suggested that Channel 6 could provide a home for LPFM operations, instead of trying to squeeze those stations into the existing FM band.  There are currently proposals to squeeze more LPFM stations into the FM band by supplanting some FM translators (see our summary of some of those proposals here).  In these comments in the Diversity proceeding, we pointed out that, as there are currently radios on the market that receive 87.9, 87.7 and even 87.5, using these three channels for LPFM service would provide an immediate home to these stations, and far more opportunity for than LPFM would have in the already congested FM band.  These opportunities would exist even in most of the largest radio markets in the country, except in the handful of markets where a Channel 6 television station will continue to operate after the digital transition.  By adopting this proposal, the service that would be provided by FM translators would not be threatened. 

Another set of comments submitted by a group which includes a number of consulting engineers went even further, suggesting that all of Channels 5 and 6 be turned over to a radio service, that the service be operated in a digital mode, and that AM stations and LPFMs all be moved to these new channels.  The proposal is quite detailed, submitting a table of allotments for the relocation of the AM stations.  The proposal also sets out alternative channels for all current full-power television stations on Channels 5 and 6 where they could be moved to clear these two channels for radio operations.

On the other hand, a number of groups have opposed use of these channels for radio.  The opposition includes those stations who already are operating their digital stations on these channels, and organizations including the NAB and MSTV who represent broadcast television stations.  These groups argue that these two channels need to be retained as television channels not only for use by the television stations that have digital operations there, but also for new stations that can be allotted after the end of the digital transition, as well as for LPTV stations that are already operating there and ones that could be built in the future. 

Thus, the Commission will be faced with a choice between using these channels for more radio or more television.  So far, no party has argued that there is no need for this additional service given the multiple services that each TV and FM radio station can provide when operating digitally, nor have questions been raised as to what the addition of new channels (either radio or TV) will do for revenues of existing stations already facing unprecedented competition from other forms of new media.  Of course, the competition will come digitally in any event through other means of wireless delivery, so more competition is inevitable whether or not these channels are used for new broadcast services.  The use of these channels for more broadcasting will only hasten the inevitable increase in competition that broadcasters will face.   At the same time, the addition of all these channels will show, once again, that the incredible competition that exists to broadcasters and demonstrate that government regulation is not necessary to ensure that local service will be provided as, if the marketplace demands it, it will be provided (see our post here). 

Reply Comments on these important issues are due on August 29.

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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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Yesterday, the FCC released its further Public Notice announcing that the freeze on filing certain Class A LPTV applications will be lifted on August 4th.  Previously, Class A stations had been frozen from expanding their authorized contours and from changing channels (displacing) while the DTV transition was underway.  Because Class A stations receive protection as primary stations, the FCC needed to lock those stations down until it had completed the DTV Table of Allotments, which it has now done.

Accordingly, as of August 4th (nearly four years to the day that the freeze was first imposed), Class A LPTV stations will once again be able to seek to modify their contours and change channels.  Applications filed prior to August 4th that requested a waiver of the freeze will be treated as having been filed on the 4th.  Thereafter, changes will be on a first come, first serve basis.  A copy of the public notice is available here. 

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I recently attended the convention of the Montana Broadcasters Association, and just a few weeks before that I had been at an event sponsored by the Washington State Association of Broadcasters.  Talking with small market TV Broadcasters in those states, an issue that does not affect major television markets but which complicates the digital transition has become clear.  In smaller markets in many states, particularly in some of the western states where there are multiple geographically dispersed cities in many television markets, there is at least one network affiliate in many cities that is either an LPTV or TV translator station.   As we've written before, LPTV and translator stations are not required to convert to digital by the February 2009 digital conversion deadline.  Instead, these stations can continue to operate in analog until an as yet unspecified date in the future.  While these stations are allowed to convert to digital, many do not have the resources to do so.  Thus, many of these stations will continue to broadcast in analog after the February 18 transition deadline.  What makes the issue particularly problematic is that most  DTV converters do not allow the "pass through" of analog programming, i.e. once they are hooked up, television sets only receive digital signals and analog signals are effectively blocked.  This presents the potential of marketplace confusion for those viewers who do not receive their signals from cable or satellite, as they will be getting conflicting messages - being told to get a digital converter to pick up the full-power stations in a market as they convert to digital, but if the consumer buys the wrong converter box, they will not be able to receive other LPTV and translator stations in the same market.

The problem has been exaggerated as converter boxes with analog pass through have been delayed in reaching the marketplace.  When I bought converter boxes in Washington, DC early last month, neither of the two major electronics retailers had the converter boxes with analog pass-through available.  A well-reviewed box from EchoStar was supposed to hit stores last month, but it is in short supply.  I can find it on-line only at the Dish Network's (owned by EchoStar) own website.  Thus, for households who buy and connect most of the available digital converter boxes, suddenly their analog LPTV stations are gone.  In some of these smaller Western markets, that may mean the loss of one or more local network affiliates.

So why don't the LPTV station's just convert to digital?  One reason is cost.  In these small markets, the revenues are naturally much lower than those available to a large market TV station.  So the cost of the mandatory conversion of the full-power station with which the low power or translator is associated already strains the budget of the local station.  The costs to convert the LPTV or translator station are necessarily secondary.  And, I have been told, in many cases it runs several hundred thousand dollars to convert even an LPTV to digital, so it puts a strain on a local licensee to pay to make the transition at any time, much less as at the same time as the associated full powered station makes the required switch to digital.  And in some markets, stations may have multiple translators that need to be converted, and in some places, those translators are not even owned by the primary station but by poorly funded municipal authorities or voluntary TV associations formed to bring TV reception to rural areas.  Certainly, these organizations are hard-pressed to pay for a digital conversion of the translators they operate.  And the residents of these very rural areas in small western markets like those in Montana are the ones least likely to get cable or local-into-local satellite service. 

Thus, stations in these smaller markets have an even harder and more nuanced consumer education task ahead of them.  They must get viewers ready for the digital transition for the full-power stations in the market, but they must also let consumers know that only certain digital converter boxes will allow the reception of the translators and LPTV stations that are not making the conversion.  The Wilmington test (about which we wrote here) will provide one test of how this message will be received, as there is at least one LPTV station in that market that is not making the digital conversion in September.  But the real test as to how well the message gets out will be next February.  LPTV and translator  stations form an integral part of the television industry especially in western markets, and they cannot be abandoned.  Thus, the entire industry must join in efforts to recognize and ameliorate their issues to the extent possible, so that everyone is ready for next year's digital transition.

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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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At its December meeting, the FCC adopted a Notice of Proposed Rulemaking on Localism.  At that meeting, while the Commissioners discussed the generalities of the proposals being made, the specifics of the proposals were unknown.  The full text of the NPRM has now been released, and it sets out the areas in which the Commission proposes to re-regulate broadcast stations.  The order also hints at a number of other proceedings that the Commission intends to launch in the near future, and reminds broadcasters of a number of other existing proceedings that will potentially bring about greater regulation.  From the discussion in the NPRM, new rules will apply to all broadcasters - large and small - and potentially place significant burdens on all stations which, as always, are hardest for small stations to deal with.  Given the number of new regulatory initiatives discussed by the Commission, the NPRM is a must-read for all broadcasters, and this proceeding is one in which all broadcasters should participate.

Among the specific proposals on which the Commission asks for comments include the following:

Community Advisory Boards:  The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station's programming.  The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the Board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board.  Other questions include how often the board should meet, and how the board members should be selected (or elected - though by whom, the Commission does not suggest).

Other Community Outreach Efforts.  The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters.  These would include the following:

• Listener surveys by telephone or other electronic means (general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the Community Advisory Board, ascertainment would effectively be back)
• Focus sessions or town hall meetings
• Participation of management personnel on community boards, committees, councils and commissions (mandatory civic participation?)
• Specific phone numbers or email addresses, publicized during programming, for the public to register their comments on station operations.

Remote Station Operations.  Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation.  Radio operations will be addressed in the proceeding to consider the public interest issues posed in the Digital Radio Proceeding (see our summary here).

Quantitative Programming Guidelines.  The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time.  Questions include what categories of standards should be established (just local programs - or more specific requirements to set required amounts of news, public affairs and other categories - and how to define what programming would qualify in each category), should requirements be established as specific numbers of minutes or hours per day or per week or by a percentage of programming or through some other metric, should other specific requirements or measurements be established?

Main Studios.  The commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license

Network Programming Review.  The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired.  If so, what programs would be exempt from the requirement (e.g. live programs), how much prior review is necessary, would such a right disrupt network operations?

Voice Tracking.  The Commission asks if "voice-tracking," (i.e. a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required.

Local Music.  While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music.  With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.

Class A TV.  The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.

 

In addition to these specific proposals to be considered in this proceeding, the Commission mentions a number of other proceedings that are either underway or which will be initiated to consider other issues relevant to the consideration of localism in broadcasting.  The new proceedings to begin include:

Embedded Advertising.  The Commission specifically states in the NPRM that it believes that there are a number of broadcast practices that violate the spirit of the Commission's sponsorship identification rules.  On one of these issues, the Commission plans to launch a proceeding to investigate 'embedded advertising," commercial messages that are contained in program content (e.g. when the hero of a TV program sips a recognizable can of Coke or drives a Ford or goes to see a specific new movie).  That proceeding was on the Commission's agenda in December, but was pulled at the last minute but apparently will return in the near future.

Network-Affiliate Issues.  The Commission for years has had pending before it a petition by a group of owners of network affiliated television stations arguing that network affiliation agreements gave the networks too much power, effectively precluding affiliates from making programming choices that might better serve the interests of their communities.  It appears that the Commission will be resolving those issues, perhaps in a new proceeding to specifically consider some of those issues.

In-State Television Signal Availability.  The Commission promises to initiate a proceeding to determine if cable and satellite carriers should be permitted (or required) to provide subscribers with service from an in-state television station, even if the subscriber lives in a DMA where all the television stations originate in another state. 

FM Channel Availability.  The FCC has instructed its staff to come up with a tool to make it easier for the public to determine (on their own without hiring a consulting engineer) if a new FM station can be allotted at a particular community.  Look for this tool to appear on the FCC's website in the future. 

Other issues will be decided as part of other on-going proceedings.  These include:

Enhanced Disclosure Obligations.  In a simultaneously released Order, the FCC imposes certain enhanced disclosure obligations on television broadcasters - requiring that new forms be completed quarterly by broadcasters reporting on the types of programming that they broadcast, and requiring that public file information be maintained on the station's website (if the station has a website).  The imposition of similar requirement for radio is already under consideration in the Digital Radio proceeding.

Emergency Communications.  The obligations of broadcasters to communicate with their audiences in times of emergency, including communications with the hearing impaired and with audience members who do not speak English, are to be considered in an Emergency Communications docket that the Commission states will be decided soon

LPFM Issues.  Issues about providing LPFM stations with more protections from interference from full power stations, and a potential preference against FM translator stations, will be addressed in a Further Notice of Proposed Rulemaking in which the Commission will soon be receiving comments (see our post here)

Payola, Video News Releases and Sponsorship Identification.  The Commission currently has proceedings underway to enforce its payola rules in specific cases, and to gather more information about the use of Video News Releases (VNRs) by broadcasters, as well as certain specific enforcement actions.  The Commission intends to pursue these issues

Increase Opportunity for New Entrants.  In a separate proceeding adopted at the December meeting, the Commission adopted an order containing specific rules to enhance the opportunities for new entrants into broadcast ownership, thus increasing local media diversity.  That proceeding will also raise a number of new issues.  The text of the new rules adopted in that proceeding, and its proposals for other new rules, has not yet been released, but a number of localism related issues will be discussed in that proceeding.

Comments on this extensive list of proposals for new rules are due only 30 days after a summary of this proceeding is published in the Federal Register.  The Commission has given the public only 30 days to comment on proposals to return the broadcast industry to the regulatory structure of the 1980s.  All broadcasters should be paying attention to these proposals, as they will have a direct impact on their bottom line, and will also create numerous traps into which a broadcaster can fall at renewal time.  The five and ten thousand dollar fines that we saw in the last renewal cycle for stations that did not complete all of their quarterly issues programs lists may well be nothing compared to fines for violating some or all of these new standards if adopted.  Pay attention to this proceeding!

 

 

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At last Tuesday's FCC meeting, the Commission adopted a controversial order, over the objection of two Commissioners, that could limit the processing of some applications for improvements by some full power FM stations, and would restrict translator applications, all in the name of encouraging Low Power FM (LPFM) stations to provide outlets for expression by groups that cannot get access to full-power radio stations (see our summary of that action here).  In recent weeks, two ideas have received some publicity providing an alternative outlet for these prospective local broadcasters - and both provide a simple solution (one more immediate and ad hoc than that other), but both leading to the same result - why not just extend the FM band by using TV channel 6?

The current FM band begins at 88.1 MHz, a channel that is actually immediately adjacent to TV Channel 6.  The FCC has for years restricted operations of noncommercial FM stations (which operate from 88.1 to 91.9 on the FM dial) in areas where there are Channel 6 TV stations in order to prevent the radio stations from creating interference to the reception of the TV stations.  That's while you will often find fewer noncommercial stations, or ones with weaker coverage, in communities that have TV Channel 6 licensees.  TV stations use an FM transmission system for their audio.  Thus, you will also find that most FM receivers (especially ones without digital tuners) will pick up the audio from TV channel 6 if tuned all the way to the left of the dial.  The short-term solution to expanding the FM band came from one broadcaster who noted that fact.

In recent weeks, a new FM station has surfaced in New York City - one which is not really an FM station at all, but instead a TV channel 6 operation being programmed like a radio station to emphasize the audio that can be picked up on FM radio dials.  Any FM station in New York would have easily cost many tens of millions of dollars to buy - so instead a new radio outlet was created by taking this low power television station, previously targeted to a narrow ethnic audience, to reach a much broader radio audience in the City.  A unique solution to the search for a spot on the crowded radio dial - and one that will not disappear in 2009 at the end of the digital conversion, as LPTV stations currently have no mandatory digital transition deadline. 

As a longer term solution, why not just take all of channel 6 and use it for FM operations?  That proposal was one that was advanced by consulting engineer Jack Mullaney in Comments recently filed in the digital television proceeding.  In his comments, Mullaney advocates the use of channel 6 (which has not been used by the FCC for digital operations of television stations to avoid interference to noncommercial FM stations, except in a few isolated cases where no alternative digital channel was available, ) for FM operations after the digital television transition has been complete.  As set out in Mullaney's comments, this could increase the FM band by 30 channels (there currently are 100 FM channels), which could create enough spectrum to allow for channels set aside for specific uses like LPFM, without having to worry about interference to full power stations.  Or channels could be set aside just for FM translators.  A section of the band could even be reserved for "pirate" radio - allowing anyone to start a radio station without an FCC license, provided that they stay on-channel and observe specific power limitations.

These innovative solutions to the current perceived scarcity of FM channels would be more advantageous than the Commission's current attempt to repeal the laws of physics by cramming LPFM stations into the existing band without displacing or otherwise interfering with other authorized users - a seemingly impossible proposition.  The proposal has been made - how will the FCC react to Mr. Mullaney's suggestion?

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