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Any new construction permit for a flash cut or a companion channel will have a deadline of September 1, 2015. The FCC did recognize that there might be reasons why a station can’t meet that deadline, and allowed for requests for 6 month extensions of that date – but such requests must be filed by May 1, 2015. Waiver grounds would include unforeseeable events and financial hardship. Extensions would only be granted until May 1, 2016 for the construction of digital facilities. However, stations receiving such an extension will still need to terminate their analog operations by September 1, 2015. They cannot continue to operate in analog during this extended construction period. While the FCC recognizes that there may be circumstances that arise that delay construction after May 1, 2015, any extension request filed after that May 1, 2015 deadline will only be granted by meeting the stricter tolling provisions normally applied to construction permits – justifying extensions only for Acts of God, administrative or judicial review of the FCC authorization, judicial review of zoning or other land use affecting the construction of the station, the need for international coordination of the construction of a station, or the bankruptcy of a licensee. Such extensions are granted only for the length of the matter causing the delay – and also will not alter the September 1, 2015 analog termination date.

The FCC rejected proposals that would have set the analog termination date based on when the FCC finally determined a plan for repacking TV stations to clear some of the television spectrum for broadband. As such a clearing would require the "repacking" of full-power stations, potentially affecting the channels used by LPTV stations, this was not felt to be enough of a burden to justify a further delay in the digital transition.  The FCC recognized that setting this hard deadline could require some LPTV stations to have to change channels again after any such repacking. However, the Commission felt that the the statute governing the digital TV transition requires hard deadline, not one that might float indefinitely. The FCC stated that it hoped that, by 2015, there will be sufficient information available about any spectrum repacking that LPTV stations will have a good idea about potential channel availability. The Commission also noted that this date would give stations time to get over the current economic climate, so as to be able to raise the money to finance the conversion. The Order notes that NTIA still has over $30,000,000 available to assist qualifying rural stations make this conversion. While the authority to spend that money runs out in 2012, the FCC urged NTIA to request that Congress extend that deadline. 

Out of Core Stations

There are still some LPTV stations operating in parts of the television band already reclaimed for wireless uses – spectrum which has, for the most part, already been auctioned off. The FCC already has in place a policy requiring that LPTV stations vacate this spectrum within 120 days  when a wireless user indicates plans to activate its use of the channels. In this order, the FCC has decided to require that LPTV stations operating on channels 52-69 vacate those channels by December 1, 2011 – less than 6 months from now. The FCC justifies this incredibly fast deadline by pointing to letter that was sent by the FCC’s Media Bureau, Video Division to such stations  since January 1, 2010, warning such stations that the need to vacate the channel was imminent.  the Commission also cited warnings in other previous orders (as well as the Notice of Proposed Rulemaking in this proceeding). The FCC notes that there are about 600 stations that continue to operate outside the TV core band, and about half of these have already filed applications seeking a construction permit for a core channel.

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. 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. However, any construction permit for digital operations that is granted to these stations will have an expiration date of September 2015, so a station receiving a construction permit later this year that does not have time to construct by the end of the year can temporarily terminate operations and sign on in digital after the December 31 deadline. The Commission notes, however, that the Communications Act requires that stations that sign off the air be back in operation within a year, or they will have their licenses canceled (unless they can present a compelling showing that the public interest justifies a longer period of silence) - so the 2015 deadline may not be a real deadline for starting operations - December 2012 might be the real deadline for operating in digital or risking the loss of their license. Finally, the FCC warns applicants against specifying operations on Channel 51, as there is a pending petition by CTIA (the wireless telecommunication association) asking that all TV operations on Channel 51 be frozen because of possible interference to wireless operators on what was channel 52. 

The FCC notes that stations in this band may end up having to pursue multiple displacement applications as they won’t have benefit of any repacking plan for full power stations when they make their decision to move later this year. But the FCC decided that it was time to clear these stations off the spectrum that has already been claimed for wireless uses – rejecting claims by Public TV groups and others that this transition is too soon - citing public TV funding cycles, the practical difficulties in constructing (e.g. equipment delivery, tower crews, etc.) so expeditiously, and worries about FCC delays in processing construction permit applications authorizing in-core operations. The FCC’s sole bone thrown to these groups was to direct the Media Bureau to expedite action on construction permit applications, or to issue emergency STAs to allow these stations to operate to some degree in the core while their applications were being processed. 

New Stations

One other class of station was mentioned in the order – new stations. For permittees that have construction permits authorizing new stations with both analog and digital channels, the new station must be on air by the construction permit deadline for the analog operation. There is no automatic extension of these construction permits. The FCC felt that any longer extension would be giving these new stations an opportunity not granted to other new licensees – a longer construction period than is usually permitted. However, these stations can construct their digital facilities and forego construction of their analog stations – just as long as the digital operation is up and operating by the construction permit deadline of analog permit.

Class A Stations

Class A television stations have a protected status that LPTV and TV translators do not have, i.e. they cannot be displaced by full-power stations or other primary spectrum users.  There has long been a question of how the Class A designation (which was assigned in a one-time window almost a decade ago) could be transferred from a Class A station's analog channel to its digital channel.  The FCC stated that, for those Class A stations that have already flash cut to digital, their Class A designation will automatically follow the license to the digital operation.  If stations plan to flash cut to digital in the future, the designation will go with the license at the time of the flash cut.  

For those Class A stations with a digital companion channel, the process is minimally more complicated, as such stations must file a Form 302, Application for a License, to transfer the Class A status to the digital channel.  The Commission makes it sound as if this will be a simple process, granted routinely to transfer the Class A status to the digital channel. 

Other issues

The FCC also decided several other issues related to the Digital conversion of these stations. The Commission decided that power could be increased on stations operating in the VHF band from the 300 watts now authorized to 3000 watts in order to overcome the interference that has plagued stations on that portion of the band. 

NPR and others had requested that LPTV stations not be able to use channel 6, as it has the potential to interfere with noncommercial radio stations at the lower reserved end of the FM band. Others have requested that these channels be reallotted for radio use. The FCC has rejected this proposal – apparently deciding to maintain this channel for TV use for the foreseeable future. The FCC did note, however, that LPTV stations, as secondary stations, must protect full-power FM operations in the noncommercial band. That question has come up from time to time in the past without a clear answer.

There was also a question of what to do with pending applications for new LPTV stations. In May 2010, these applicants were given 60 days to file amendments to convert their applications to digital. The Commission never took any action against those applicants who did not file the required amendments. In this Order, the FCC decided to dismiss all remaining analog applications who did not follow the May 2010 order.

Questions were also raised about notice required before digital transition, to educate the public about the conversion. The FCC said that it would address consumer education issues later – closer to the 2015 deadline. Questions to be considered include what notice is necessary as the digital transition has principally occurred with full-power stations. The FCC recognizes that the public will need to be reminded to re-scan their digital receivers to find the stations on their new channels when stations make a change in channels before the 2015 deadline. A question unique to these stations is that many stations, particularly translators, don’t originate programs, so how can they provide notice to viewers? 

Stations making a conversion between now and 2015 need not give the FCC any notice before any flash cut or the surrender of an analog license.  Unlike in the full-power transition there is no need for stations to make a public interest showing of their need to convert early.  As so much of the transition has already occurred, the FCC did not see any need to slow any stations intent to convert before 2015.  However, if they do terminate analog operations before 2015, they must warn consumers about the conversion, by broadcasting prior notices at times when most people are watching the station.   If the station has no origination capabilities – and it would be a hardship to come up with such origination capabilities – the station needs to come up with other ways of notifying its community of the conversion, whether it be through the primary station or through some other method (e.g. newspaper publication).  Thirty days before the September 2015 deadline, those stations still operating both analog and digital stations must notify the FCC as to whether they will surrender their analog channel, or flash cut to digital on their analog channel and surrender the channel that had been used for digital operations. 

A number of technical changes in LPTV operations were also authorized.  The FCC modified the definition of a minor change in an LPTV station's facilities - limiting such status to any change where the proposed transmitter site has not been moved more than 30 miles from reference coordinates of current principal community.  This limit applies to station moves, even if the previously used contour overlap methodology would have allowed move of a greater distance.  The FCC noted that it would entertain waivers of this 30 mile limit, and clarified that the contours of the current and proposed facilities must overlap - the 30 mile rule does not permit a move of that magnitude unless these contours overlap.  Changes were also made in rules dealing with the submission of antenna vertical patterns, and the use  of full-power television station's emission mask to compute interference.

Finally, beginning December 1 of this year, LPTV stations operating any ancillary nonbroadcast service using their digital channel must pay the same 5% fee paid by full-power stations.

Conclusion and Implications

The decisions made here preview many of the decisions that the FCC may make in other proceedings brought about by the portions of the digital conversion that has already occurred.  Various proposals are pending to allow channels 5 and 6 to be used for radio.  Given the decision on the proposals to restrict the use of channel 6 that were rejected by the FCC in this order, it appears that the broader proposals for the use of these channels for radio are on hold while the FCC considers spectrum repacking issues as part of the proposed reclamation of parts of the television band for wireless broadband use.

The issue of use of Channel 6 LPTV stations for radio-like uses also seems to have been resolved by this Order.  The audio from these stations can only be received on FM radio receivers when they are operating in an analog mode.  Some had argued that there should be some degree of analog operations allowed after the LPTV digital transition ends, to allow these audio operations to continue.  The Order does not appear to make any provision for such carry-over analog operations - so these quasi-FM stations may well be out of the audio business by September 2015.

Finally, the Order implies that any repacking of the television spectrum will not be completed by 2015.  This is far after the 2012 reclamation that the Commission suggested in their Broadband Report.  Now, it appears that the FCC does not expect that it will have identified the final channels on which television stations will operate after any repacking until some point after 2015.  This may well reflect realities - as Congress has not yet authorized the incentive auctions that make the reclamation possible by sharing some auction revenue with television stations to convince some to give up their licenses to clear spectrum.  Once that Congressional authorization comes, the Commission must finalize its repacking plan which, while the process has begun, will still not be easy to fully implement.  So this realization that spectrum repacking will not be complete by 2015 seems to reflect reality.

This Order is, of course, subject to reconsideration and appeal.  Look for some parties to seek such review of many of the more controversial issues decided here.  Like the full-power transition, this will not be a quick and easy process. 

[Updated, July 20, 2015, to correct the paragraph dealing with notice to the FCC of a station's decision to terminate analog operations]

The Commission suggests that television broadcasters who elect to share channels would both be entitled to full must-carry rights on cable and satellite, even though these rights are currently accorded only to the primary video stream on any television station.  Thus, if two stations, who each currently operate on a 6 MHz channel were to combine their operations, then each would continue to have full must carry rights, even though one of those 6 MHz channels has been returned to the FCC for other uses.  This obviously raises issues.  Questions raised by the FCC include:

• Are both of such stations "licensed and operating on a channel regularly assigned to its community", which is what is required by the statute covering mandatory cable carriage for commercial stations.?
• For noncommercial stations, are both stations licensed to a specific principal community that has a Noise Limited Signal Contour over the cable headend, again the standard for carriage?
• Are both stations still located in the DMA of the cable system?
• What if one station on a shared channel elects must-carry, while the other elects retransmission consent.  Does that make any difference since the FCC proposes to recognize each as a primary station?
• Are there any technical issues that would make mandatory carriage of such stations problematic?

The Commission also suggests that the ability of a station to elect channel sharing would be limited to those stations that currently (as of the date of the NPRM) have "existing applications, construction permits, or licenses."  Does this imply that future stations have no ability to later decide to combine their operations with another station in their area?  Or does this imply that there will be no future stations?  What will happen to those in the current VHF auction referenced in the first paragraph? 

 In opening television spectrum for wireless, the FCC has one significant problem, especially in congested areas like the Northeast.  Even if some stations choose to combine their operations, to open broad swaths of spectrum for wireless uses, the FCC will have to repack television stations into a smaller part of the band.  But that would require using the VHF channels which, in the experience of television broadcasters all around the country, is problematic for digital operations. Noise from other electronic devices and other coverage issues simply make that spectrum inferior for digital television operations.  So what is the FCC to do?  The Commission seeks comments on proposals to make VHF stations more digital friendly.  Questions include:

• Will increasing the power permitted for VHF digital operations overcome interference issues?  How would this affect interference to other stations?  Would it overcome interference? (Some engineers at a recent FCC forum on the issue were skeptical)
• To overcome potential interference that could arise from increased power, the FCC states that some have suggested that required distance between co-channel stations be increased, but also states that it finds it desirable to not increase such spacings.  Will spacings have to be increased? 
• Will vertical polarization of stations decrease their susceptibility to interference?
• Could the Commission establish mandatory performance standards for indoor antennas, and would that have an effect on the performance of VHF digital television stations?  Does the FCC have authority to do so?
• Are there other ways to increase digital television operations on VHF channels?

The FCC also asks for comments on whether the current television spectrum should be redesignated in the FCC rules as shared-use spectrum, shared between television stations and wireless users.

Comments on these important issues are due on March 18, 2011, and replies on April 18, 2011.

The Commission is also, on a different track, completing its Future of Media proceeding (which we have summarized before).  That proceeding also looks at whether and how the local news and information needs of today's consumer are being met by the media, and how those needs will be met in the future.  This study, too, is expected sometime near the end of the year.  There have been discussions by those involved in these proceedings that the ownership review, while not formally tied to the Future of Media study, will nevertheless look at the findings of that review to inform its discussion of the ownership issues facing the FCC.  If that is in fact the case, and the Future of Media report is not completed until the end of the year, how can the modification of the ownership rules that relies on this study be completed before the end of the year?

The majority of the Commission is new since the last ownership review was completed in late 2007.  Given the emphasis on so many new issues since that time (including the broadband roll out and the proposals to reclaim some of the television spectrum for wireless broadband uses), one wonders if the Commission really will have the capacity to move quickly on the ownership review, which always involved many controversial issues.  And, with issues such as shared service agreements, newspaper-broadcast cross-ownership, television duopoly in small markets, and revisions to local radio ownership rules all seemingly on the table, there is no lack of controversy that will face the Commission this year.  So, prepare your comments, and get ready to let the FCC know what you think by the July 12 deadline.

The Commission, while clearly having a mandate to foster broadband development, seems to be taking steps that look toward possible intervention in the technological development of the video marketplace - seemingly standing ready to help pick winners and losers through regulatory actions.  The proposals in this proceeding, if the Commission were to follow through with mandates that are mentioned in this Request for Comments, could impose costs on MVPD providers and others to assist in providing access to potentially competing video - video that developments from other companies (both Apple and Microsoft, for instance, having introduced systems over the years to make TV and Internet content available on a television screen) seem to demonstrate that the marketplace is quite capable of providing if there is consumer demand. 

The questions asked in the first of the paired Requests for Comments, the one looking at whether to reclaim the television spectrum, adds to this perception that the Commission is looking to select winners and losers in the video environment.  The questions asked in that proceeding raise so many fundamental issues about over-the-air television in a manner that seems to indicate a preference for other uses of the television spectrum that, by just asking the questions it does, the Commission could scare off vital investment just as the television industry is looking for ways to utilize the digital television spectrum that has just so recently been fully deployed (e.g. though the mobile digital television deployment which is only just beginning).  While we wrote about some of the general questions asked in that proceeding here, there are many complex, specific issues on which the Commission seeks detailed comment in just over two weeks.  These include:

• The factors that the Commission should review in assessing relative spectrum needs
• The impact on the US economy of increased wireless broadband and of any decrease in the amount of spectrum used by television broadcasters.
• The current and future uses of the digital capacity of television stations
• The views of the financial community on mobile TV broadcasting
• Whether over-the-air television could be more efficiently used through more co-location of facilities and though other compression technologies that could allow more services in less spectrum, and the costs of developing and implementing such changes - both to stations and consumers
• Whether better antenna standards or more use of MVPD retransmission could lessen the need for spectrum currently used by TV stations
• What benefits do over-the-air television stations provide in terms of local news, education, emergency information and political coverage
• What market-based solutions could be used to encourage broadcasters to be more efficient with spectrum and to potentially  free some of that spectrum.

Perhaps the most loaded question was one which started with a premise that appeared to contain a conclusion for all of the other questions asked:

Consumers are migrating away from mass-market “appointment” viewing to more fragmented and time-shifted viewing. What impact will this trend have on the television broadcasting industry? What can the Commission do to help broadcasters participate in this evolution?

This question alone seems to conclude that "appointment television" is dead - despite the fact that even on the Internet, appointment television seems to be continuing to play a big role - whether through coverage of a political speech, preliminary games of March Madness, a live U2 concert, or a swimsuit photoshoot.  Even on the Internet, appointment television seems to be alive and well - so a conclusion that its death is imminent seems difficult to reach at this time, and perhaps presumptuous for the Commission to even posit.  Even if one were to conclude that television broadcasters were the buggy whip manufacturers of the 21st century (and, given the continued reliance of advertisers - both political and commercial - and viewers on programming provided by such broadcasters, that seems a difficult conclusion to reach), should the Commission be encouraging or potentially be mandating their demise by pulling spectrum out from under them - when the stations and consumers have just spent billions of dollars to foster the digital transition that was only completed in June - before television broadcasters have even been given the opportunity to prove their ability to operate and function in the digital world?  Particularly in smaller television markets, these very broadcasters may well be the ones who are most likely to bring video programming innovations to their service areas - both in connection with their over-the-air operations and on other digital platforms.  Should the Commission presumptuously label their business model as one that is being replaced?

This Commission, in may ways, has striven to be an open one - seeking public comment on many topics, including broadband innovation and even the broadcast multiple ownership review that is coming next year, encouraging diverse and robust debate, as early in the process as possible.  Yet on these fundamental questions facing the television industry, there seems to be a rush to judgment - asking pointed questions where it is suggested that answers have already been reached, and giving interested parties such a short time frame to answer such fundamental questions that the Commission cannot possibly expect searching, detailed responses.  While we understand the Commission's need to meet it mandate to report to Congress on broadband deployment by February, must it really engage in this rush to judgment on questions concerning all video operations?  The history of the television digital transition shows the bumps in the government's handling of a basic change in just one portion of the video industry - and that was part of a 15 year process.  To reform the entire video industry at the speed with which the Commission now seems to be moving can only invite trouble.  We hope that affected parties file comments in response to these two Requests for Comments that fully state their cases by the December 21 deadline in a way that makes the Commission recognize that there need not be government anointed solutions to the major industry development issues now facing the various industries involved.  The evolution of the television industry is a process that needs to be allowed to develop in response to consumer demands - not in response to government mandates. 

Users of the Internet, led by Google, have argued for an open system, where a subscriber pays for access to the wireless spectrum, and can essentially connect any device or receive any service, just as long as it does not damage the network.  This is much like the current wired telephone network, where a consumer can connect a telephone or a fax machine or a laptop computer and get access to the network.  Proponents of this model contend that it will encourage technological development as companies compete to develop different applications that can run on the network,and provide a "third pipe" into the home providing high speed Internet access to compete with that provided by cable and telephone companies.  Some might assume that content providers like broadcasters would favor that open approach so that their content can be easily delivered to the consumer, without the broadcaster having to cut any sort of deal with the network provider to get access.

However, many of the existing wireless providers have opposed such open access.  In order to build out a tremendously expensive nationwide system high speed wireless system on these channels, the carriers need an incentive to make that investment.  If the carriers are expected to build out the system and then open access to any content provider at no cost, in essence the operator of the system is subsidizing the operations of the content provider by freely transporting their content to the user.  If the carrier is not making money off of the content that is provided on the network, the amount the government will receive from the auction will be less, as the carriers will not have the ability to fully to monetize the system in the way that current wireless carriers do.  The expectation would also be that buildout, especially to rural areas where there are fewer subscribers to pay for access to a wireless service, will be much slower than might otherwise occur.  When one of the hoped for benefits of the wireless service is access to the Internet in rural areas, the regulators would hope to avoid disincentives to the provision of such service.  While some content providers might say that access to rural areas will not provide the anticipated benefits if it is not full and open access to the entire Internet, others will retort that some access is better than no access at all.  And many broadcasters have found that existing wireless carriers are open to deals with broadcasters, as they want to feature the local content that the broadcaster can deliver.

The arguments come in all shades and with many nuances - as some carriers have now come out in favor of some degree of open access, while some content providers are pushing for a totally open system where parties can come in and lease access from a network at wholesale prices to provide their own services.  The arguments being made on both sides are incredibly technical, with good points being made by all parties.  And there is lots of money at stake, as the spectrum is expected to fetch billions of dollars for the Federal government at auction..  For the broadcaster, future access to the consumer may be at stake, not only for the broadcaster and new digital services that it may want to provide, but also for the new media content providers who are more and more becoming the broadcaster's competition.  So the decisions made in the next few weeks as to how this service develops will have profound impact on the entire communications industry.  Thus, while next week's meeting may look like one that a broadcaster can ignore, in fact the broadcaster's attention should be focused on the developments regarding this spectrum.