On March 3, 2008, the Federal Communications Commission (FCC) issued a Report and Order entitled “DTV Consumer Education Initiative,” which adopted new requirements for television broadcasters and video providers to educate viewers about the upcoming transition from analog to digital television (DTV). In light of the looming Feb. 17, 2009 hard deadline for the termination of analog broadcasters, the Commission felt it necessary to mandate that television stations and other video programming providers air public service announcements (PSAs) and other informational programming to familiarize consumers with the coming change in technology.
The new rules will become effective upon publication in the Federal Register, with announcements commencing immediately, and continue through March 31, 2009, for all full-power stations that complete the transition to their full DTV facilities by Feb. 18, 2009. As of this writing, the rules have not yet become effective. However, we recommend that TV broadcasters and video providers immediately begin preparing for compliance with the new rules, since they will take effect soon. The new rules and options for compliance are outlined in this advisory.
Although many TV stations are already airing PSAs and other programming designed to educate the public about the upcoming digital television transition, the FCC's Order contains very specific requirements for these educational initiatives. The new rules mandate public education efforts about the DTV transition by television broadcasters, multichannel video providers, and electronics manufacturers. In addition, the new rules require that television stations file a quarterly report with the FCC, using a newly adopted FCC Form 388, certifying compliance with the rules and reporting specifics on other consumer educations efforts undertaken by the station related to the DTV transition. This quarterly report on the station's DTV education efforts must also be placed in the station's public file and on its website, if it has one.
The FCC has established three options for meeting the educational initiatives requirement, two of which are available to all TV stations, and one of which is available only to noncommercial stations. These options are discussed in turn below, and each has very specific mandates as to how many PSAs about the digital transition are required, and how much additional content (crawls, various over-lays onto programming, long-form programs, etc.) will be required to meet the obligations. Broadcasters and others subject to these rules should review the specific requirements carefully and prepare for their implementation. As mentioned above, television stations will be required to file a form reporting on their compliance on a quarterly basis.
Option One
Option One requires the following:
- If the order becomes effective by March 31, which now appears unlikely, between now and March 31st, a station must run at least one PSA and one visual crawl on both its analog and digital channels during each quarter of the day—midnight to 6 a.m.; 6 a.m. to noon; noon to 6 p.m.; and 6 p.m. to midnight (actually to be run during prime time, 8 to 11 Eastern and Pacific time, 7 to 10 Central and Mountain time).
- Between April 1, 2008 and Sept. 30, 2008, a station must run at least two PSAs and two visual crawls on both its analog and digital channels during each quarter of the day—midnight to 6 a.m.; 6 a.m. to noon; noon to 6 p.m.; and 6 p.m. to midnight (at least one during prime time—8 to 11 Eastern and Pacific time, 7 to 10 Central and Mountain time).
- Between Oct. 1, 2008 and March 31, 2009, a station must run at least three PSAs and three visual crawls on both its analog and digital channels during each quarter of the day—midnight to 6 a.m.; 6 a.m. to noon; noon to 6 p.m.; and 6 p.m. to midnight (at least one during prime time—8 to 11 Eastern and Pacific time, 7 to 10 Central and Mountain time).
Each PSA must be at least 15 seconds long, and must contain the following information:
- After Feb. 17, 2009, a television receiver with only an analog broadcast tuner will require a converter box to receive over-the-air broadcasts with an antenna because of the nation's transition to digital broadcasting. Analog-only TVs should continue to work as before with cable and satellite TV services, gaming consoles, VCRs, DVD players and similar products.
- State that more information is available by phone and online, and provide appropriate contact information, including means of contacting the station or the network.
The PSAs must, during the life of the campaign, also discuss the following information:
- The steps necessary for an over-the-air viewer or a subscriber to a multichannel video programming distributor to continue viewing the station after the transition
- Changes in the geographic area or population served by the station during or after the transition
- The channel on which the station can be viewed after the transition
- Whether the station will be providing multiple streams of free video programming during or after the transition
- Whether the station will be providing a high definition signal during or after the transition
- The exact date and time that the station will cease analog broadcasting, if it has not already done so
- The exact date and time that the station will begin digital broadcasting on its post-transition channel, if it has not already done so
Option Two
Option Two consists of a compromise plan offered by the National Association of Broadcasters, which focuses on longer announcements aired at peak viewing hours and a more significant publicity push in the last months of the digital transition.
This option requires that stations air an average of 16 PSAs and 16 "crawls, snipes and/or tickers" per week over each quarter through the transition between the hours of 5 a.m. and 1 a.m. Over the course of each calendar quarter, one in four of these PSAs and crawls, snipes and/or tickers must air between 6 p.m. and 11:35 p.m. Eastern/Pacific time (5 and 10:35 p.m. in Central and Mountain time zones). Each PSA must be at least 30 seconds long.
Alternatively, stations can substitute two 15-second PSAs for a 30-second spot. In addition, Option Two also requires that a 30-minute “infomercial” about the DTV transition be shown once prior to Feb. 17, 2009. This requirement will generally expire on March 31, 2009, and will apply separately to a station's analog channel and primary digital stream.
In addition, under Option Two, beginning Nov. 10, 2008, television stations will be required to provide a “100-Day Countdown,” consisting of enhanced disclosure leading up to Feb. 17, 2009. Such enhanced disclosure can take any of the following forms:
Graphic display: A graphic super-imposed during programming content that reminds viewers graphically there are “x number of days” until the transition, and which visually instructs viewers to call a toll-free number and/or visit a website for further details. The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.
Animated graphic: A moving or animated graphic that concludes with a countdown reminder, which will remind viewers that there are “x number of days” until the transition. Viewers are to be visually instructed to call a toll-free number and/or visit a website for details. The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.
Graphic and audio display: Either a graphic display or animated graphic along with an added audio component. The duration may vary from 5 to 15 seconds, at the discretion of the station.
Longer form reminders: Stations may choose from a variety of longer form options in order to communicate the countdown message. Examples might include an “Ask the Expert” segment in which viewers can call in to a phone bank and ask knowledgeable people questions about the transition. The length of these segments can vary from 2 to 5 minutes, at the discretion of the station. (Some stations may also choose to include during newscasts DTV “experts” who may be asked questions by the anchor or reporter about the impending Feb. 17, 2009, deadline).
Option Three
Noncommercial stations may chose either Option One or Option Two discussed above, or they can select a special Option Three created solely for them. Option Three consists of 60 seconds per day of consumer education of the station's choosing, of which 7.5 minutes per month must air between 6 p.m. and midnight. This requirement doubles on May 1, 2008 and, on Nov. 1, 2008, it triples to 180 seconds per day, of which 22.5 minutes per month must air between 6 p.m. and midnight. Option Three also requires a 30-minute “infomercial,” which must air once between 8 a.m. and 11:35 p.m. before Feb. 17, 2009.
All of the options described above apply to both analog and primary digital stream channels and require PSAs to be closed-captioned. Each option also requires the quarterly filing of the new FCC Form 388, beginning April 10, 2008 and ending April 10, 2009, detailing the station's compliance with its chosen option as well as other optional station outreach efforts.
The FCC also established educational initiative requirements applicable to multichannel video programming distributors (MVPDs) and consumer electronics manufacturers. Briefly, MVPDs such as cable and satellite carriers must provide bill stuffers. See Davis Wright Tremaine LLP's recent advisory for more information regarding the new rules applicable to cable and satellite providers. Manufacturers of TV receivers, converter boxes, DVD players and other devices that work with TV receivers must also provide consumer notices about the digital transition with their equipment.
Currently, there are no requirements applicable to translators, Class A or low-power TV stations, although the FCC encourages these stations to advise viewers that they may continue to receive these analog stations after Feb. 17, 2009. Low-power stations are also asked to encourage viewers buying DTV converters to get ones that will continue to pass through their analog signals, since many converter boxes available to consumers may not provide the ability to view analog signals.
Stations should immediately take whatever steps are necessary to comply with the above requirements, since they become effective upon Federal Register publication, which could happen very quickly. The FCC hopes that all of these consumer education requirements will help insure that no one is taken by surprise when full-power analog broadcasting ceases on Feb. 17, 2009.