The FCC late Friday released an Order and Notice of Proposed Rulemaking addressing a number of issues which arose as a result of the Congressional delay in the DTV transition deadline from February 17 until June 12. In many cases, the actions taken in the Order are ministerial – e.g. changing the expiration dates on digital construction permits from February to June. But there were also a number of substantive issues addressed by the order – including the public education requirements for the remainder of the transition and the potential for delaying any further terminations of analog service until at least April, and subjecting any planned termination of analog service before June 12 to additional scrutiny to determine if that termination would serve the public interest. This is despite what many have termed a relatively uneventful termination of analog service on February 17 by over 400 stations nationwide. Comments on this change in the transition procedures are to be filed on an expedited basis – within 5 days of the publication of this order in the Federal Register.
The delay of the early termination of service is likely to cause the most controversy, as Senate Republicans backed the transition delay only after specifically including in the legislation language that seemingly permitted such transitions under the rules that were in place at the time that the legislation was adopted (see our post here). This would seemingly have permitted stations to terminate analog service within 90 days of the June 12 deadline, provided they had given their listeners at least 30 days notice of their plans. A number of stations have started to provide that notice, planning a termination in March. But the Commission has tentatively concluded that it can amend the process for termination, and has set the date of March 17 for a notice to be filed at the FCC by all stations that want to terminate analog service before June 12. As the Commission plans to continue to require 30 days public notice of the termination, and as they won’t allow any termination decision to become official until the March 17 filing, the earliest a station can terminate analog service under this proposal (absent a technical issue or other extreme circumstance) would be April 16.
Even then, the Commission proposes to review the requests for early termination to see if they meet certain public interest standards. The Commission suggests that the intent of Congress was to give the public until June 12 to prepare for the transition, and thus urges as many stations to keep their analog transmissions operating until that date. The Commission will be especially concerned about network affiliates terminating service before the June date. The Commission proposes that such stations will be required to make a showing that their operation is in the public interest, by assessing these factors:
- If analog service will continue through June 12 to at least 90% of the station’s service area (either through another network affiliate continuing in analog or a station with "enhanced analog nightlight" – the nightlight service with news and public affairs programs) continuing in 90% of the service area through June 12
- Provide on-air consumer education information – including a proposal to enhance such information by requiring stations to provide specific information as to areas that will have a loss of television service because of a difference in digital coverage from that previously provided by the analog station, and information about how to find out what kind of antenna will be necessary to receive the digital signal
- Enhanced community outreach, including a call center to deal with consumer complaints, and a walk-in center where demonstrations can be provided to viewers as to how to use converter boxes.
- Specific on-air crawls for the week prior to termination making clear when the termination will occur.
Stations that don’t meet these requirements can make a special showing as to why they should still be able to terminate early. And the FCC reserves the right to reject the showing and refuse to allow the station to transition early. Comments on all of these proposals are solicited in the short comment period. With all of the notices that are being provided to consumers (first that the transition would occur on February 17, then that it would occur on June 12, then for some stations that it might occur in March, but now not until at least April. With all of these dates flying around, would the Commission really tell someone that they can’t transition in April, giving consumers in that market yet another date by which they should transition? The FCC has asked that stations that want to transition early file comments in the rulemaking proceeding, addressing why they want to so transition, and whether they will be able to meet these criteria.
Comments are also solicited on changes to the consumer education requirements of the rules. Specific new information to be required, in addition to the information as to potential loss areas discussed above, would include information about a consumer’s need to rescan the channels on their digital tuners at the end of the transition to find the channels on which stations will be operating at the end of the transition.
As this proceeding may be very important to stations that may want to transition early, as well as for stations that plan to keep operating through June 12, watch for the filing deadline very soon.