On Feb. 4, 2009, Congress passed the DTV Delay Act (S. 352, 111th Cong. (Jan. 29, 2009)), which would extend the deadline for terminating analog television until June 12, 2009. That Act is being sent to President Obama, who has indicated that he will sign it into law. In anticipation of the DTV Delay Act's enactment, yesterday, Feb. 5, 2009, the Federal Communications Commission (FCC or Commission) issued a Public Notice providing television stations with further guidance regarding the termination of analog television and the final transition to digital television (DTV). Specifically, the Commission's Public Notice attempts to reconcile its earlier procedures established to guide stations and the public through the Feb. 17 transition with the anticipated extension of that deadline to June 12.
The DTV Delay Act seeks to give the public additional time to prepare for the conversion to DTV, while ensuring that television stations have the flexibility to transition to digital operations in advance of the June 12 deadline. Accordingly, stations may still seek to terminate analog operations on Feb. 17, or at some later date in advance of the new June 12 deadline consistent with the Commission's revised procedures outlined in this advisory.
I. Stations seeking to terminate analog on Feb. 17
Stations wishing to terminate analog service on Feb. 17 may still to do so, but they must notify the Commission no later than Monday, Feb. 9, 2009 (11:59 p.m. EST), of their intention to terminate. Even if a station has previously notified the FCC of its intention to terminate on Feb. 17, it must re-file by Feb. 9 to confirm that it still intends to terminate on the 17th. Thus, all stations intending to terminate analog broadcasting on Feb. 17 must confirm that intention with the FCC by Feb. 9.
In granting stations the authority to proceed with a planned analog termination on Feb. 17, the Commission has partially waived its earlier requirements that television stations seek prior FCC approval well in advance of such an early termination. However, the Commission has imposed additional viewer notification requirements and reserves the right to deny requests to shut off on Feb. 17 on a case-by-case basis. Similarly, the FCC may request additional information from stations justifying that such early termination of analog service is in the public interest. The FCC is concerned that a particular market may have no remaining analog service after Feb. 17, or that a large number of consumers in a particular market may still be waiting for coupons, in which case the Commission might deny a station the authority to terminate analog operations on Feb. 17.
“Viewer notifications” – In order to terminate analog broadcasts on Feb. 17, stations must air the equivalent of 30 days worth of viewer notifications regarding the station's intention to terminate its analog service on that date. Stations are required to air 120 total spots, at least 30 of which must be in primetime, in the time remaining before Feb. 17. The spots must be spread equally throughout the remaining time. These spots are in addition to the 16 DTV consumer education spots that stations have also been carrying per week. Whereas the DTV consumer education spots typically provide general details about the nationwide conversion to digital, the 120 viewer notifications must specifically address the station's intended conversion and must contain the following information:
(1) The station's call sign and community of license; (2) the fact that the station is planning to terminate its analog or digital operations before the June 12 transition date; (3) the date of the planned termination; (4) what viewers can do to continue to receive the station, i.e., how and when the station's digital signal can be received; (5) information about the availability of digital-to-analog converter boxes in their service area; and (6) the street address, e-mail address (if available), and phone number of the station where viewers may register comments or request information.
Additional crawls – In addition, stations terminating on Feb. 17 must broadcast, if technically feasible, additional crawls on their analog channel regarding the station's planned termination of analog service, for the seven-day period from Feb. 10 through the termination of the station's analog signal on Feb. 17. The specifics are as follows:
- For the first five days (i.e., Feb. 10 (11:59 p.m. EST) through Feb. 14 (11:59 p.m. EST)), the crawl must be aired for five minutes of every hour of the station's analog broadcast day, including during primetime.
- For the final two days (i.e., Feb. 16 (11:59 p.m. EST) through Feb. 17 (11:59 p.m. EST)), the crawl must be aired for 10 minutes of every hour of the station's analog broadcast day, including during primetime.
Stations that lack the technical capability to air crawls must air this information in an alternative format for a comparable duration.
II. Stations that wish to terminate analog after Feb. 18, but before June 12
Going forward, stations that wish to terminate analog service after Feb. 18, but before June 12, must follow the FCC's previous established procedures. Thus, stations will not be permitted to terminate their analog service between and including Feb. 18 through March 13, 2009, because of the inability to complete the advance coordination required under the Commission's rules. Unlike the partial waiver granted for stations terminating analog on Feb. 17, the Commission has stated that it will not waive this rule.
Beginning on March 14, 2009, i.e., 90 days before the new statutory transition deadline of June 12, 2009, the Commission's earlier streamlined notification procedures will once again apply to stations seeking to terminate analog service within the last 90 days before the transition date. Accordingly, for analog terminations on or after March 14, stations must notify the Commission at least 30 days prior to the termination date and provide viewer notifications for at least 30 days prior to termination of analog service. Except in the case of equipment failure, the Commission will not permit stations to terminate analog service with less than 30 days' notice to the Commission and the stations' viewers.
Beginning May 14, 2009, i.e., within 30 days of the new transition date, stations may terminate analog operations with a mere notification to the FCC. However, any station intending to terminate analog service prior to June 12 must still provide 30 days' advance notice to its viewers informing them of the early transition.
Termination on June 12, the actual transition date, does not require any special advance notification to viewers, and stations must simply notify the Commission once they have terminated analog service and commenced operations with their post-transition DTV facilities.
III. DTV operations
A station terminating analog service prior to June 12 may operate only a digital facility that has been approved for pre-transition service. While many stations have built and are operating on their final, post-transition DTV channels, others intend to use their current analog channel for post-transition DTV operations. Still others are “flash-cutting” to digital on their current analog channel. The post-transition DTV construction permits for stations moving back to an occupied analog channel contain a special condition restricting the station from operating such DTV facilities until the last day of the transition. As the end of the transition has now been pushed back to June, the condition on such construction permits prohibiting the operation of the facility before midnight on Feb. 17, 2009, is now read to prohibit such operation until midnight on June 12, 2009.
If a station has such a restriction on its construction permit and wants to begin operating with those post-transition digital facilities prior to the transition date, i.e., before June 12, then it must first file a request for Special Temporary Authority (STA) to seek Commission approval for an early transition. Such a request must demonstrate that the operation: (1) will not cause impermissible interference to any authorized analog or pre-transition digital stations; (2) will maintain at least the station's current digital service; and (3) that the station will commence full, authorized post-transition operations on the (new) transition deadline. A station may not operate with its post-transition DTV facilities in this case until it receives authority from the FCC to do so.
IV. Analog nightlight, consumer education, and other issues
Analog stations that have already terminated (or will do so before Feb. 17) – Stations that have previously terminated analog operations may seek to reinstate analog service by requesting an STA from the FCC. Stations that have previously terminated and wish to remain off the air need not file anything further. Stations that have indicated that they will terminate on Feb. 16 or earlier must confirm whether they still intend to terminate their analog signal prior to Feb. 17 by filing a notice with the FCC by midnight on Monday, Feb. 9.
Analog “nightlight” – The FCC is encouraging stations that terminate analog service on or before Feb.17, 2009, to continue to broadcast on their analog signal information regarding their transition and, if necessary, emergency information. For example, in the recent DTV conversion of the Wilmington, N.C., market, many stations continued to broadcast a “slate” describing the digital transition and providing sources for information about actions viewers should take to retain television service. The FCC is urging stations to air this type of so-called nightlight programming for a minimum of two weeks following termination of normal analog programming. Stations that intend to provide this limited programming should so indicate in their analog termination notification to the Commission filed by Feb. 9. Stations may provide this nightlight-type service after analog termination on Feb. 17, even if they are not included in the list of stations eligible to participate in the analog nightlight program and without additional authority from the FCC.
Coordination with cable and satellite providers – The Commission reminds stations to coordinate with cable and satellite providers to ensure that providers in the market know when the station is terminating and how they will continue to receive the station's signals.
100-day countdown clock – Although the FCC has not yet formally amended its DTV consumer education rules, Chairman Michael Copps noted at the Commission's open meeting that only those stations actually terminating analog service on Feb. 17 need still be running the 100-day countdown clock counting down the days to conversion on Feb. 17. All other stations will need to reset the countdown clock and recommence the 100-day countdown 100 days before June 12, or on March 5, 2009.
DTV consumer education efforts – Further information about changes to the Commission's rules regarding general DTV consumer education efforts should be forthcoming from the FCC, but it is safe to assume that all crawls, tickers, public service announcements (PSAs), etc., should be adjusted to specify June 12 as the new nationwide transition date. The National Association of Broadcasters has already begun efforts in that regard and has begun making new PSAs and materials available to stations.
Each station's situation is slightly different and broadcasters should immediately determine how they want to proceed in light of the anticipated extension and take whatever steps are necessary to comply with the Commission's new requirements.