Broadcast Television Station Reminder: DTV Consumer Education Rules and Activity Reports

• New FCC DTV Consumer Education Rules Effective April 1
• FCC Form 388 DTV Consumer Education Activity Reports Due April 10

Although the digital television (DTV) transition is coming down the home stretch, the majority of television stations continue to face ongoing DTV consumer education requirements, under the Federal Communications Commission's (FCC) DTV Consumer Education Initiative, aimed at informing viewers about the transition from analog to digital television. In fact, the FCC recently revised its DTV consumer education rules, and starting April 1, 2009, most stations will need to comply with several new obligations as outlined in this advisory.

In addition, all stations, even those stations that have completed construction of their full, post-transition facilities and are now exclusively digital operations—and thus are spared from airing further DTV consumer education spots—must file an FCC Form 388 by April 10, 2009, reporting on their consumer education activities for January, February and March.

New DTV consumer education rules effective April 1

Recently, the FCC adopted a further Report and Order addressing the termination of analog television and revising the current DTV consumer education requirements. As an initial matter, the FCC has eliminated the requirement for most stations to continue broadcasting DTV consumer education information after they have terminated analog service and are operating only in digital. Thus, stations that have completed construction of their full-authorized, post-transition digital facilities and are operating exclusively in digital on their final DTV channel do not need to continue with the general DTV consumer education announcements.

For those remaining stations, however, the FCC has expanded and revised its rules significantly. Stations should review these changes to the Commission's rules carefully and adjust their efforts as necessary. The following new requirements will go into effect starting April 1:

• Provide information about loss areas. In an effort to inform over-the-air viewers of changes in service resulting from the DTV transition, the FCC is now requiring that stations air such information as part of their consumer education efforts. If the FCC's Signal Loss Report—available on the FCC's Web site—predicts that 2 percent or more of the population in a station's current Grade B analog service contour will not receive the station's digital signal once the transition is made, then the station must air “service loss notices” to inform viewers of exactly where (i.e., which communities or what sections of the market) an analog signal is received today, but is not predicted to receive a digital signal after the transition.
  
  Predicted service loss resulting from a change from a VHF channel to a UHF channel should also be discussed. The FCC estimates there are 213 stations still operating in analog that will lose more than 2 percent of the current population when they switch to digital-only. Thus, stations should review the FCC's Signal Loss Reports and determine how best to convey information about “loss areas” (if any) to their viewers. For stations needing to air information about loss areas, the notices must be at least 30 seconds in length and must be aired at least once per day between 8 a.m. and 11:35 p.m., with at least three service loss notices per week airing between 8 p.m. and 11 p.m. in the Atlantic, Eastern and Pacific time zones, or between 7 p.m. and 10 p.m. in the Mountain, Central and Alaskan time zones. These notices are in addition to other existing consumer education requirements.
  
  Further, the service loss notices must include the FCC's Call Center number, 1-888-Call-FCC, the FCC's TTY number, 1-888-TELL-FCC, and the Web site address for the FCC's online DTV reception mapping tool, www.DTV.gov/maps. The station must also post service loss information on its Web site home page with a link to the coverage change maps on www.DTV.gov and with a link to www.DTV.gov/maps. This information must remain on the station's Web site for at least 30 days after the station terminates its analog service.

• Antenna information. All stations must now include information about the use of antennas and the types of antennas that viewers may need, as well as how to install them, as part of their consumer education campaign. Such information should include details regarding a station's change from the VHF to the UHF band (or vice versa) and the need for additional or different equipment to avoid the loss of service. Antenna info can be included in existing DTV consumer education efforts, such as in news programs and longer format pieces. Information must be provided at least once per day between 8 a.m. and 11:35 p.m., in a message lasting at least 15 seconds, with at least three of those messages each week airing between 8 p.m. and 11 p.m. in the Atlantic, Eastern and Pacific time zones, or between 7 p.m. and 10 p.m. in the Mountain, Central and Alaskan time zones.

• Rescanning. All stations must include information in their DTV consumer education campaigns to inform and remind viewers about the importance of periodically using the “rescan” function on their digital televisions and digital converter boxes. The FCC has learned that the need to rescan periodically the available channels is one of the most common problems facing consumers. Rescanning information can be included in existing DTV consumer education efforts, such as in news programs and longer-format pieces. Information must be provided at least once per day between 8 a.m. and 11:35 p.m., in a message lasting at least 15 seconds, with at least three of those messages each week airing between 8 p.m. and 11 p.m. in the Atlantic, Eastern and Pacific time zones, or between 7 p.m. and 10 p.m. in the Mountain, Central and Alaskan time zones.

• Phone numbers and consumer help centers. The FCC is now requiring that stations have and publicize "a telephone number that will serve to receive local consumer calls and consumer referrals from the FCC's national Call Center." The FCC expects that the telephone number provided will be staffed during business hours with personnel who are prepared to answer complex questions from viewers, particularly regarding actions necessary to get reception in specific locations and other engineering issues.
  
  The FCC has noted that stations should be prepared for an increased volume of calls, both referred and locally originating, around important dates, such as the date the station terminates analog, the date many other stations in the market terminate analog, and June 12. This telephone number may be operated and staffed by the station itself, by a group of stations in a market, or by a third-party entity such as a state broadcasters' association.
  
  In addition, as part of its DTV consumer education campaign, every station must air notices providing: 1.) the location and operating hours of any walk-in DTV help centers open in the station's market area; 2.) the FCC Call Center telephone number and TTY number; and 3.) the station's telephone number for receiving consumer referrals and calls from local viewers. This information can be included in existing DTV consumer education efforts, such as in news programs and longer format pieces. Information must be provided at least once per day between 8 a.m. and 11:35 p.m., in a message lasting at least 15 seconds, with at least three of those messages each week airing between 8 p.m. and 11 p.m. in the Atlantic, Eastern and Pacific time zones, or between 7 p.m. and 10 p.m. in the Mountain, Central and Alaskan time zones.

• Countdown clock. The FCC has amended the 100-day countdown requirement and will require broadcasters subject to the Option Two consumer education rules to air a 60-day countdown to the date of their individual termination of analog service. Stations terminating on June 12 will thus begin the 60-day countdown on April 13. Stations that terminate analog service prior to June 12 will begin counting down to their specific termination date earlier, but will not be required to begin their countdown until April 1. The countdown clock can be a graphic, graphic and audio, or animated graphic, in which case it must be at least five seconds long, or it can be a longer-form reminder, such as an “Ask an Expert” segment, in which case it must be at least two minutes in length.

• 30-minute video. The FCC will require broadcasters subject to Option Two of the consumer education rules to air a new, up-to-date 30-minute informational video before they transition. This video must include the fact that the national DTV transition has been extended to June 12, 2009, and include locally specific information, including information about the specific transition date for the station, any loss of service issues, and the dates when all of the other stations in the market are transitioning. If a station has a service loss, as discussed above, then the same service loss information addressed in the service loss notices must also be included in the 30-minute informational program. The program must air on at least one day after April 1, 2009, and before the station's termination of analog service, and it must air between 8 a.m. and 11:35 p.m.

Finally, the FCC has revised FCC Form 388, the DTV Quarterly Activity Station Report, to reflect the changes it has made to the DTV consumer education rules in this Report and Order. As these revised requirements become effective April 1, stations must report on their compliance with these additional rules beginning with the Second Quarter report, which must be filed by July 10, 2009.

FCC Form 388 DTV Quarterly Report due April 10

By April 10, all full power television stations must electronically file an FCC Form 388 DTV Quarterly Activity Station Report with the FCC detailing the station's efforts to educate viewers about the DTV transition. Consistent with the Commission's mandate, broadcast stations must provide viewers with information about the upcoming DTV transition by airing information about the transition including public service announcements (PSAs), crawls, tickers, and longer-format programs.

As part of the Form 388 filed in 2008, commercial stations elected to follow one of two compliance Options, while noncommercial stations selected from three Options. Consistent with the Option chosen, stations should have been airing and logging PSAs, crawls, tickers, etc., during the preceding three months designed to educate and inform consumers about the DTV transition in general, and the station's DTV transition plans in particular.

Details about the requirements can be found in an article on our blog. Thus, the Form 388 DTV Quarterly Activity Station Report will summarize both the mandatory and voluntary consumer education activities undertaken by the station in the first quarter of 2009, from Jan. 1, 2009, through and including March 31, 2009.

The report must be filed electronically using the FCC's Consolidated Database System (CDBS). The use of CDBS will also allow the reports to be easily available to the public and the Commission. For more information on filing via CDBS, please visit the FCC's Web site. In addition to being submitted to the FCC, the Form 388 Reports must be retained in the station's public inspection file, and also posted on the station's Web site, if the station has one.

The FCC has been taking the DTV consumer education obligation very seriously, and stations should be careful to comply with the requirements and to tile their Form 388 on time. For more information about the FCC's revised DTV consumer education rules, or for assistance in preparing and filing your Form 388, please contact any of the lawyers in the Davis Wright Tremaine Broadcast Group.