FCC Provides Details for Transition to Digital TV

The FCC's Third DTV Periodic Order was published in the Federal Register on Jan. 30, 2008, providing details for the transition to digital television. That same day, the FCC issued a Public Notice finalizing the relevant dates and forms relating to the DTV transition set for Feb. 17, 2009. Although additional issues are likely to arise between now and then, this advisory summarizes the current status and next steps that stations need to take in the DTV transition process.

February 17, 2009: a hard and fast deadline

First and foremost, all full power stations must cease analog transmissions by 11:59 p.m. on Feb. 17, 2009, even if the station's DTV channel is not yet operational. This is an unwaivable deadline that the Commission says it is statutorily obligated to follow. Low power stations, translators and Class A stations, on the other hand, have no DTV transition deadline as of yet and, until further notice, those stations may continue broadcasting analog transmissions indefinitely.

Transition status report: FCC Form 387

Second, by Feb. 19, 2008, all full power television stations will be required to prepare and file a DTV Transition Status Report on FCC Form 387, updating the Commission on the status of their DTV transition process and describing remaining steps. The form must be filed electronically and does not require a fee.

Form 387 contains detailed questions about how and when stations will move to their post-transition DTV channels. Stations may or may not have the answers to all of these questions now, but should endeavor to answer the questions as completely as possible. Stations will be required to update Form 387 throughout the year as circumstances warrant. In any event, stations that have not completed their post-transition DTV facilities by Oct. 20, 2008 will need to file another Form 387 on that date to update the FCC on the station's DTV transition status.

In completing Form 387, stations must advise the Commission on the construction status of their DTV facilities as authorized in the FCC's final DTV Table of Allotments, known as Appendix B. Stations that have not yet obtained construction permits for their post-transition DTV channels will need to file applications for those permits by June 19, 2008. The resulting permits will require construction to be completed by Feb. 17, 2009, consistent with the termination of analog broadcasting.

Depending on the particular circumstances, stations may wish to terminate analog or pre-transition DTV broadcasting early, reduce or modify the analog or pre-transition DTV signal, or avail themselves of some other strategy to get their post-transition DTV facilities in place by Feb. 17, 2009. The FCC has attempted to give stations some flexibility in accomplishing this, as described below.

Completing construction of DTV facilities

Construction deadlines: Stations that will be using the same post-transition DTV channel as their current, pre-transition DTV channel must complete construction by May 18, 2008 if they already have a construction permit for their post-transition facilities as specified in Appendix B; otherwise construction completion is required by Aug. 18, 2008. Feb. 17, 2009 is the construction deadline for stations that are moving to a post-transition DTV channel that is different from their pre-transition DTV channel, as well as for analog “singleton” stations that do not have a paired DTV channel. Where stations have not fully constructed their pre-transition DTV facilities, the FCC has said they can abandon those plans to concentrate on their post-transition DTV facilities.

Application for digital channel construction permit: Stations that have not yet obtained licenses or construction permits for their post-transition DTV channel will need to prepare and file an application on FCC Form 301 seeking a construction permit for their DTV facilities that matches the DTV parameters set forth in Appendix B.

The Commission has committed to process these applications on an expedited basis (generally within 10 days) if Form 301 is filed by March 17, 2008. To receive expedited processing, however, the application cannot seek to expand the station's facilities beyond the Appendix B facilities, and must either match or closely approximate the Appendix B facilities. Perhaps more significantly, however, those stations that have a Feb. 17, 2009 construction deadline must file their post-transition DTV construction permit applications by June 19, 2008.

Extension of construction deadlines prior to Feb. 18, 2009: The FCC has considerably tightened the criteria that will justify extending the deadline for construction of a station's post-transition DTV facilities. While it will continue to consider circumstances beyond the licensee's control, such as zoning issues, traditional justifications such as the lack of equipment generally will no longer merit an extension. However, the FCC will consider lack of equipment to be valid grounds for an extension if the equipment has been timely ordered but not delivered, if a shortage of qualified construction crews prevents construction, or where the equipment is on hand but weather prevents installation. Additionally, the FCC will consider other circumstances that are truly beyond a station's control, such as a need to wait for international coordination.

The FCC has also tightened the criteria for obtaining a financial hardship waiver, requiring stations to show either that they are in bankruptcy or that they have had negative cash flow for the past three years. Beyond that, a station would have to show “extraordinary” circumstances, such as waiting for the arrival of expected funding in the form of an approved grant. Even if an extension is obtained, however, analog transmissions must still end by Feb. 17, 2009.

Extension of construction deadlines after Feb. 17, 2009: Once a station has received an extension to construct its DTV facilities beyond the Feb.17, 2009 deadline, the Commission will entertain additional requests for time only under its tolling rules. The FCC will consider a request to toll the construction deadline based on an act of God (floods, tornadoes, hurricanes or earthquakes . . . but not the mere onset of winter), or because of an ongoing administrative hearing or judicial review relating to zoning or environmental issues, or a pending international coordination.

On-air notification of delay in DTV service: Stations that receive an extension or waiver of their DTV construction deadline will have to provide frequent on-air notification to viewers beginning at least 30 days prior to the termination of analog service. Such on-air notifications must occur four times a day, at least once in prime time, and include: 1) station call sign and community of license; 2) the fact that the station must delay construction and operation of its post-transition DTV service; 3) information about the nature, scope and duration of post-transition service limitations; 4) what viewers can do to receive the station (e.g., via LPTV and/or pre-transition DTV channel, if applicable); and 5) street address, e-mail and phone number of station where viewers can register comments or request additional information. As explained below, this same type of notice will also be required where stations plan to reduce or terminate existing analog or DTV service prior to the Feb. 17, 2009 transition date, and in various other situations as well.

Flexibility for completing construction

Phased transition options: Stations that have different pre-transition DTV channels may be able to stay on those channels after Feb. 17, 2009, if they cannot complete construction of their post-transition channels by that date (regardless of reason) if: 1) the pre-transition channel serves all of the station's pre-transition (analog and DTV) viewers, and 2) the pre-transition channel causes no interference to another station's post-transition DTV operation, using a 0.5 percent interference standard. Stations may also be able to operate their post-transition DTV channel at less than fully authorized power so long as they continue to serve all of the station's existing viewers. Stations using either one of these temporary measures must also comply with the 30-day on-air notice provisions specified above.

Continued use of the pre-transition DTV channel will require special temporary authority (“STA”) from the Commission, which the FCC will approve for up to two six-month periods or until Feb. 18, 2010, at the latest. These STAs must be applied for no later than Aug.17, 2008. In order to qualify for this relief, however, the pre-transition channel must be within the “core” channel group, channels 2-51.

Alternatively, a station may operate on its post-transition DTV channel at less than the fully authorized facilities as specified in Appendix B, if it meets one of the following two criteria:

1. A “unique technical challenge,” which includes problems in using the same facilities as the analog channel; and the reduced power station will serve at least 85 percent of the population currently receiving analog or DTV service; or
2. A “significant technical impediment” to construction that would not otherwise qualify for an extension coupled with a reduced power station that will serve 100 percent of the pre-transition population.

In either case, the station must meet the 0.5 percent interference standard with other stations, although that should not be an issue if a station is operating on its post-transition channel at reduced power. Post-transition stations operating with reduced power pursuant to these provisions will be given STAs for up to six months or until Aug. 18, 2009. Stations that cannot meet the 85 percent criterion may be allowed temporary operation for three to four months only. In any event, stations wishing to operate their post-transition channels at reduced power pursuant to the provisions described above are asked to request STAs as soon as possible.

NCE/small market/non-top-four stations: Both noncommercial educational stations and stations that are not one of the top-four network stations (ABC, CBS, NBC or Fox) in markets 1-100 may qualify for other types of reduced service operation to be considered on a case-by-case basis. The Commission has not articulated what those options might be or exactly what it will consider when assessing those stations' requests.

Analog service reduction or termination: Stations needing to reduce or terminate analog operation more than 30 days prior to the transition deadline in order to accommodate the transition to DTV must obtain an STA from the FCC, subject to the following two prerequisites:

1. The station must demonstrate that analog reduction or termination is a direct result of construction and/or operation of that or another station's post-transition DTV facilities; and
2. The station must give the on-air notice described above for at least 60 days prior to reduction or termination of analog service.

Digital service reduction or termination: Broadcasters may also reduce or terminate service on their pre-transition DTV channel in order to begin service on their post-transition DTV channel prior to the transition date, so long as operation of the post-transition DTV channel does not cause interference and continues to serve all existing viewers prior to commencing full, authorized post-transition operations on Feb. 18, 2009.

In cases where stations will flash-cut from analog to digital on their post-transition DTV channel, they may reduce or terminate service on their pre-transition DTV channel by STA request demonstrating that the reduction/termination is directly related to post-transition construction/operation of its own or another station's facilities. The FCC asks that such STA requests be filed 60 days in advance, and requires on-screen notification beginning 30 days prior to the reduction or termination of analog service.

The FCC will presume that any flash-cut to a post-transition DTV channel is in the public interest where the pre-transition DTV or analog channel is an out-of-core (52-69) channel. Also, satellite stations may flash-cut from their pre-transition DTV channels to their post-transition DTV channels upon notice to the FCC.

Reduction/termination within 90 days of Feb. 17, 2009 transition date: Stations reducing or terminating analog or digital operation on pre-transition channels within 90 days of the transition date, i.e. on or after Nov. 19, 2008, may do so upon providing 30 days notice to the FCC and on-screen viewer notification for 30 days prior to reduction or termination. However, any reduction or termination that will last less than 30 days does not require notice or FCC approval.

Other issues

Lifting freeze on maximization applications and allotment changes: The Commission has tentatively set Aug. 17, 2008 as the date on which it will begin accepting applications to maximize DTV facilities (for those stations not previously maximized) and to change the table of DTV allotments, provided it has completed processing of all stations' applications to construct their post-transition DTV facilities. Petitions for rulemaking to change the Table of Allotments have been frozen by the FCC since August 2004.

Under certain conditions, however, the FCC will allow stations to obtain waivers for minor increases in post-transition facilities, prior to the lifting of the freeze. Specifically, such expansion will be permitted if it would: 1) allow the station to use a different antenna to avoid a significant reduction in post-transition service; 2) not expand the station's service area more than five miles in any direction; and 3) not cause more than 0.5 percent new interference to any station.

This advisory only scratches the surface in summarizing the major items dealt with by the Commission in the Third Periodic DTV Review. It should not be relied upon as a guide for any specific station or situation without consulting FCC counsel.