In response to a letter from Congressmen Markey and Dingell from the House Commerce Committee (which we reported on earlier), the FCC on Monday issued a Notice of Proposed Rulemaking (NPRM) seeking public comment on a number of steps that the FCC could take to publicize the February 2009 deadline for the transition from analog to digital television.  In recent weeks, concern has been expressed by Congress and others about the possibility that a "trainwreck" could occur if the DTV transition passes and millions of consumers suddenly find themselves without TV reception on February 18, 2009 – and blame Congress for the fact that their TVs no longer work.  Thus, to try to assure Congress that this will not occur, the FCC has proposed a number of ideas and asked whether mandatory publicity efforts should be adopted.  A copy of the full NPRM is available here. 

The specific proposals outlined in the FCC’s NPRM include the following:

• Mandatory public service announcements on television stations, and mandatory crawls on the bottom of television screens announcing the transition
• Requirements that cable and satellite systems include statements in their billing material
• Requirements that broadcasters file reports with the FCC every 90 days concerning their public education efforts
• Notices to be included by electronics manufacturers in the packaging of televisions and related products about the impending change
• Education programs conducted by the FCC and the NTIA for electronics retailers to educate them about the transition process and the government’s coupon program (see our explanation of that program here)
• Other efforts that may publicize the transition dates

Many questions are raised in the NPRM, including the fundamental question of whether the FCC has the authority to mandate any or all of these proposals.  For instance, the Commission asks whether it has the power to force the consumer electronics manufacturers to include notices with their products, and to impose civil fines if they don’t, as suggested by the Congressional letter.  And does the First Amendment limit what it can force the broadcaster to say in PSAs, or what it can force the cable system to include in its mailings?  As we’ve written before in different contexts, the First Amendment prohibits government restrictions on speech unless there are no less restrictive means of accomplishing an important government objective.  While informing the public about the impending digital transition may well be an important objective, aren’t the voluntary actions already planned by broadcasters sufficient to notify the public (see, for example, the NAB’s planned public campaign), and don’t broadcasters have the most incentive of anyone to make sure that the public can find their stations the day after the transition is complete?

Beyond the fundamental question of whether the FCC has the authority to adopt and enforce the rules that Congress seeks, the NPRM also asks specific questions about each of the particular proposals.  For instance, on the issue of a PSA campaign, the FCC asks whether it should mandate the message to be used, and how often the PSAs should be required.  Or if there is to be a crawl on the bottom of the TV screen, when would that run? On every program?  For how long?  When would it start?  And on the FCC filing requirements (just what any broadcaster wants – more FCC filings to complete), how much detail would these filings need to contain?  Would they also need to go on the station’s website and in their public file, and perhaps even be published in the local newspaper (again, just what a broadcaster wants – a government mandate to give more business to the competing local newspaper).  Interestingly, the one question that was not asked by the FCC is what the penalties for noncompliance or inadequate compliance would be – a question with which any broadcaster, cable company, or electronics manufacturer will be vitally concerned.

Comments in response to the NPRM are due 30 days after the publication of the Notice in the Federal Register, and Replies are due 15 days later.  So we’ll be at 16 months and counting before the FCC even gets to consider these proposals.  Broadcasters shouldn’t wait for the FCC to act before they take action to let the public know about the digital transition.  I am constantly amazed at gatherings of friends and family who have nothing to do with the broadcast media about how few know that their over-the-air televisions will be obsolete in early 2009.