[Federal Register: January 30, 2008 (Volume 73, Number 20)] [Rules and Regulations] [Page 5633-5704] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr30ja08-15] [[Page 5633]] ----------------------------------------------------------------------- Part II Federal Communications Commission ----------------------------------------------------------------------- 47 CFR Parts 15, 73 and 76 ----------------------------------------------------------------------- Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television; Final Rule [[Page 5634]] ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 15, 73 and 76 [MB Docket No. 07-91; FCC 07-228] Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television AGENCY: Federal Communications Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This document issues the final rules in the third periodic review of the transition of the nation's broadcast television system from analog to digital television. It provides a progress report on the DTV transition and issues the procedures and rule changes necessary to ensure that broadcasters timely complete their transitions. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals, and may no longer transmit analog signals. The rules in this document establish deadlines for broadcasters to complete construction of their final, post-transition (digital) facilities. DATES: Effective January 30, 2008, except for Sections 73.682(d), 73.8000(b)(2) and (4), and 73.9000(k), which are effective May 29, 2008 and, except for the following sections which contain information collection requirements that have not been approved by OMB: Sections 73.624(g) and 73.1201(b). The Commission will publish a document in the Federal Register announcing the effective date for these sections. The incorporation by reference of certain publications listed in Sections 73.616(e)(1) and 73.8000(d) is approved by the Director of the Federal Register, as of January 30, 2008. The incorporation by reference of certain publications listed in Sections 73.682(d), 73.8000(b)(2) and (4), and 73.9000(k), is approved by the Director of the Federal Register, as of May 29, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, or via the Internet to PRA@fcc.gov. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, please contact Evan Baranoff, Evan.Baranoff@fcc.gov, Eloise Gore, Eloise.Gore@fcc.gov, Kim Matthews, Kim.Matthews@fcc.gov, or Maureen McCarthy, Maureen.McCarthy@fcc.gov of the Media Bureau, Policy Division, (202) 418-2120; John Gabrysch, John.Gabrysch@fcc.gov, or Gordon Godfrey, Gordon.Godfrey@fcc.gov, of the Engineering Division, Media Bureau at (202) 418-7000; or Shaun Maher, Shaun.Maher@fcc.gov, or Nazifa Sawez, Nazifa.Sawez@fcc.gov, of the Media Bureau, Video Division, (202) 418-1600. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams on (202) 418-2918, or via the Internet at PRA@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report and Order, FCC 07-228, adopted on December 22, 2007, and released on December 31, 2007. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418- 0530 (voice), (202) 418-0432 (TTY). Final Paperwork Reduction Act (``PRA'') Analysis This Report and Order has been analyzed with respect to the Paperwork Reduction Act of 1995 (``PRA''), and contains new and modified information collection requirements for full-power television broadcast stations, including the following: (1) Stations must file forms no later than February 18, 2008 detailing their transition plans and status (using FCC Form 387) and must update this form as events warrant and by October 20, 2008 if they have not completed construction; (2) Stations without a construction permit for their final, post-transition (DTV) facility must file an application to construct or modify that facility (using FCC Forms 301 and 340), stations without a license for their final, post-transition (DTV) facility must file an application for a license to cover that facility (using FCC Form 302 DTV), and stations may request authority to transition early to their post-transition channel (also using FCC Forms 301 and 340); (3) Stations with a construction deadline on or before February 17, 2009 may file a request for an extension of time to construct their final, post-transition (DTV) facility (using FCC Form 337); (4) Stations with a construction deadline occurring February 18, 2009 or later may file a notification of an event that would toll their deadline to construct their final, post-transition (DTV) facility (using FCC Informal Application Form); (5) Stations may file a request for STA approval to temporarily remain on their in-core pre-transition DTV channel after the transition date (using FCC Informal Application Form); (6) Stations may file a request for STA approval to build less than full, authorized post-transition facility by the transition date (using FCC Informal Application Form); (7) Stations may file a notification pursuant to section 73.1615 to temporarily reduce or cease existing analog or pre-transition DTV service where necessary to facilitate construction of final, post-transition facilities (using FCC Informal Application Form); (8) Stations may file a request for STA approval to permanently reduce or terminate analog or pre-transition DTV service where necessary to facilitate construction of final, post- transition facilities (using FCC Informal Application Form); (9) Stations may file a notification to permanently reduce or terminate analog or pre-transition DTV service within 90 days of the transition date (using FCC Informal Application Form); (10) Stations must comply with the PSIP requirement to populate the Event Information Tables (``EITs'') with accurate information about each event and to update the EIT if more accurate information becomes available; (11) Stations must comply with the station identification rules that require a DTV station which chooses to identify a licensee that it is transmitting on one of its multicast streams to follow a specific format for making such a station identification announcement; (12) Stations must comply with a viewer notification requirement (i.e., stations must notify viewers about their planned service reduction or termination) if: (a) They will permanently reduce or terminate analog or pre-transition digital [[Page 5635]] service before the transition date, or (b) they will not serve at least the same population that receives their current analog TV and DTV service on February 18, 2009; (13) Stations claiming a ``unique technical challenge'' warranting a February 17, 2009 construction deadline must file a notification to document their status (using FCC Informal Application Form), if they do not file, or do not include such information in, an application for post-transition facilities (Forms 301 or 340); and (14) DTV stations that are permittees must comply with the requirements for feeable ancillary or supplementary services in 47 CFR 73.624(g) (using FCC Form 317). The Commission, as part of its continuing effort to reduce paperwork burdens, invited the Office of Management and Budget (``OMB'') and the general public to comment on the information collection requirements contained in the Third DTV Periodic Review NPRM. On June 22, 2007, the Commission submitted the proposed information collection requirements to OMB for review under section 3507(d) of the PRA. On July 9, 2007, the Commission published a Federal Register notice addressing the burdens contained in the proposed information collection requirements and seeking comments from the public. On August 15, 2007, OMB issued a Notice of Action and filed comments to each of these proposed information collection requirements. No other comments were filed with respect to these proposed collections. We note that some of the collections remain unchanged from when they were previously published in the Federal Register and submitted to OMB, while others that were submitted have been slightly revised, with such changes being largely procedural in nature (e.g., filing date change, method of filing, etc.). In addition to the collections proposed in the Third DTV Periodic Review NPRM, this Report and Order also contains additional new or modified information collection requirements. Finally, we also note that, pursuant to the Small Business Paperwork Relief Act of 2002 (``SBPRA''), the Commission sought specific comment in the Third DTV Periodic Review NPRM on how it might ``further reduce the information collection burden for small business concerns with fewer than 25 employees.'' We received no comment on this issue. The information collection requirements adopted in this Report and Order will be submitted to OMB for final review under section 3507(d) of the PRA, and OMB and the public will be afforded an opportunity to file comments on these final information collections. The Commission will seek emergency approval from OMB for Items 1-3 (noted above in paragraph 193) based, in part, on the prior submission for OMB approval of these information collection requirements. The Commission will publish a Federal Register notice addressing the burdens contained in each final information collection adopted in this proceeding. The Commission will also publish a separate notice seeking comments from the public and OMB on the final information collection requirements. Summary of the Report and Order I. Introduction 1. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals and may no longer transmit analog signals. (See Digital Television and Public Safety Act of 2005 (``DTV Act''), which is Title III of the Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006) (``DRA'') (codified at 47 U.S.C. 309(j)(14) and 337(e)). DTV Act Section 3002(a) amends Section 309(j)(14) of the Communications Act to establish February 17, 2009 as a new hard deadline for the end of analog transmissions by full-power stations. 47 U.S.C. 309(j)(14)(A). DTV Act Section 3002(b) directs the Commission to ``take such actions as are necessary (1) to terminate all licenses for full-power television stations in the analog television service, and to require the cessation of broadcasting by full-power stations in the analog television service, by February 18, 2009; and (2) to require by February 18, 2009, * * * all broadcasting by full-power stations in the digital television service, occur only on channels between channels 2 and 36, inclusive, or 38 and 51, inclusive (between frequencies 54 and 698 megahertz, inclusive).'' 47 U.S.C.A 309 Note. DTV Act Section 3005(a) also created a coupon program to subsidize the purchase of digital-to-analog (``D-to-A'') converter boxes.) With this Report and Order in our third periodic review, we resolve issues necessary to complete the conversion of the nation's broadcast television system from analog to digital television (``DTV''). We conduct these periodic reviews in order to assess the progress of the transition and make any necessary adjustments to the Commission's rules and policies to facilitate the introduction of DTV service and the recovery of spectrum at the end of the transition. (The Commission has conducted two prior periodic reviews: the first in MM Docket No. 00-39 and the second in MB Docket No. 03-15.) In the Notice of Proposed Rulemaking in this third periodic review (Third DTV Periodic Review NPRM, 72 FR 37310, July 9, 2007), we sought comment on several issues necessary to ensure that broadcasters meet the statutory transition deadline and complete construction of their final, post-transition (digital) facilities. We received 125 comments, 22 reply comments, and numerous ex parte filings in response to the Third DTV Periodic Review NPRM. 2. With the DTV transition deadline less than 14 months away, our focus is now on overseeing broadcasters' construction of facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. Specifically, this Report and Order adopts rules to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post- transition (digital) channels upon expiration of the February 17, 2009 transition deadline. We want to ensure that no consumers are left behind in the DTV transition. We recognize that the transition is a complex undertaking presenting many challenges to the broadcast industry and that some disruption of television service may be unavoidable leading up to the analog turn-off. Therefore, we adopt rules to offer broadcasters regulatory flexibility, while at the same time requiring broadcasters to maintain the best possible television service to the public and meet viewers' over-the-air reception expectations after the transition date. (We note that the statutory transition deadline applies only to full-power stations. The transition timing for low power, translator and Class A stations will be addressed in a separate proceeding.) II. Executive Summary 3. In this Report and Order in our third periodic review, we (1) provide a progress report on the transition; (2) describe the status and readiness of stations to complete their transition; (3) adopt procedures and rule changes necessary to ensure that broadcasters meet the statutory transition deadline and complete construction of their final, post-transition facilities while maintaining the best possible television service to their viewers; and (4) address other issues related to the transition. Stations face many challenges in order to be ready to make their transition by the February 17, 2009 statutory transition deadline. Stations must focus their full attention on constructing their final digital facilities before they must [[Page 5636]] cease analog operations. In this Report and Order, we take the following actions to facilitate the completion of the transition for full-power television stations: We establish February 17, 2009 as the construction deadline for stations building digital facilities based on a new channel allotment in the post-transition DTV Table of Allotments (``DTV Table'') and accompanying Appendix B (``DTV Table Appendix B''), i.e., stations that will be returning to their analog channel or moving to a new digital channel for post-transition operations. These stations will not be required to construct a digital facility on their pre-transition DTV channel and will be permitted to forego further construction to the extent such a facility has been partially built. (The details of each station's channel assignment, including technical facilities and predicted service and interference information, are set forth in the DTV Table Appendix B. 47 CFR 73.622(i) codifies the post-transition DTV Table). The Commission proposed channel assignments and reference facilities for stations' post-transition operations in a 2006 Notice of Proposed Rule Making in MB Docket No. 87-268. We establish May 18, 2008 as the construction deadline for stations that will use their pre-transition DTV channel for post- transition operations and already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities. We establish August 18, 2008 as the construction deadline for stations that will use their pre-transition DTV channel for post- transition operations, but which do not have a construction permit that matches their post-transition (DTV Table Appendix B) facilities. We establish February 17, 2009 as the construction deadline for stations demonstrating that a unique technical challenge, such as the need to reposition a side-mounted antenna, prevents them from completing construction of their final DTV facilities. We establish stricter standards for granting extensions of time to construct digital facilities for all construction deadlines on or before February 17, 2009. In addition, for construction deadlines occurring February 18, 2009 or later, we will consider such requests under the tolling standard set forth in section 73.3598(b) of the rules. We adopt our revised FCC Form 337, as proposed. We adopt FCC Form 387 and require all full-power television stations to file it by February 18, 2008, detailing their current transition status, additional steps necessary for digital-only operation upon expiration of the February 17, 2009 transition deadline, and a timeline for making those steps. Stations must update the form as events warrant and by October 20, 2008 if they have not completed construction. We will permit stations that are moving to a different DTV channel for post-transition operations to temporarily remain on their pre-transition DTV channel while they complete construction of their final digital facilities, provided: (1) They build facilities that serve at least the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service; and (2) they do not cause impermissible interference to other stations or prevent other stations from making their transition. We will permit stations to operate their post-transition facilities, pursuant to special temporary authority (``STA''), at less than their full, authorized facilities, provided: (1) They demonstrate a unique technical challenge (as defined in section V.B.5., infra) and they can serve at least 85 percent of the same population that receives their current analog TV and DTV service; or (2) a significant technical impediment to the construction of their full, authorized facilities that would not otherwise qualify for an extension of time to construct facilities under the new, stricter standard adopted herein and they serve at least 100 percent of the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service. In addition, stations must demonstrate that they do not cause impermissible interference to other stations or prevent other stations from making their transition. Finally, stations that cannot serve at least 100 percent of the same population that receives their current analog TV and DTV service must comply with a viewer notification requirement. We clarify that, under existing rules, a station may temporarily reduce or cease service on their pre-transition analog or digital channel for a period of 30 days or less, upon notification to the Commission and without prior approval, when necessary to complete construction of the post-transition digital facility. We will provide stations with the flexibility to permanently reduce or terminate their analog or pre-transition digital service before the transition date, provided the station satisfies the following two requirements: (1) The station demonstrates that its service reduction or termination is directly related to the construction and operation of its, or another station's, post- transition facilities; and (2) the station notifies viewers on its pre- transition channel(s) about the planned service reduction or termination and informs them about how they can continue to receive the station. To provide additional flexibility within 90 days of the February 17, 2009 transition date (i.e., beginning on or after November 19, 2008), we will allow stations to permanently reduce or terminate their analog or pre-transition digital service without prior approval upon notification to the Commission 30 days prior to the planned permanent service reduction or termination. The station must still comply with a viewer notification requirement. We will permit stations that are moving to a different DTV channel for post-transition operations to cease operations on their pre-transition digital channels and begin operating on their new channels before the transition date, provided: (1) The early transitioning stations will not cause impermissible interference to another station; and (2) the early transitioning stations continue to serve their existing viewers for the remainder of the transition and commence their full, authorized post-transition operations upon expiration of the February 17, 2009 transition deadline. We will offer expedited processing of stations' applications to build their post-transition facilities, provided that their application: (1) Does not seek to expand the station's facilities beyond its final DTV Table Appendix B facilities; (2) specifies facilities that are no more than five percent smaller than those specified in the post-transition DTV Table Appendix B (with respect to predicted population); and (3) is filed within 45 days of the effective date of this Report and Order. We adopt our revised FCC Forms 301 and 340, as proposed. We announce our intent to lift the freeze on the filing of maximization applications on August 17, 2008, the date by which we expect to have completed processing stations' applications to build their post-transition facilities. Until this date, we will maintain our freeze and will not accept maximization applications to expand facilities. We adopt a waiver policy that will permit rapid approval of minor (i.e., not exceeding 5 miles) expansion applications filed by stations that will not use their pre-transition DTV channel for post- transition operation. This policy will allow added flexibility for stations that wish to use their existing analog channel antenna, which provides [[Page 5637]] benefits for the successful completion of the transition by reducing the demands on equipment suppliers and installation crews during a critical time as the transition date nears. We adopt a 0.5 percent new interference standard (i.e., only considering interference in addition to that contained in the post-transition DTV Table Appendix B) to apply to applications for post-transition facilities and also to future maximization applications and applications to implement new allotments. We update the Commission's rules to reflect the latest revisions to the ATSC standards concerning DTV transmission and PSIP. We revise section 73.624(g) to require DTV stations that are permittees operating pursuant to an STA or any other FCC instrument authorizing DTV transmissions to file FCC Form 317 and pay fees on any revenue derived from feeable ancillary or supplementary services in the same way required of DTV licensees. We clarify our station identification requirements for digital stations in situations where one of a station's multicast streams is being used to air programming provided by another broadcast station, such as a low power station, or another programming source. We discuss MVPDs' obligations with respect to carriage of digital stations after the transition. III. Background 4. Congress specifically requires the Commission to periodically evaluate the progress of the nation's transition to DTV. The Commission initiated this third DTV periodic review in April 2007. The previous two DTV periodic reviews began in March 2000 and January 2003, respectively. In addition to these periodic reviews, the Commission conducts the ongoing DTV proceeding, in which we recently established the DTV Table of Allotments for stations' post-transition operations (``post-transition DTV Table''). (See 47 CFR 73.622(i), which codifies the post-transition DTV Table. The Commission proposed the post- transition DTV Table in the October 2006 of Proposed Rulemaking (Seventh FNPRM). The Commission established the initial DTV Table of Allotments in 1997. The details of each station's channel assignment under the initial DTV Table, including technical facilities and predicted service and interference information, were set forth in the initial Appendix B of the Sixth Report and Order (``initial Appendix B''). See Sixth Report and Order. The initial Appendix B was amended in 1998. Simultaneous with the adoption of the Sixth Report and Order, the Commission announced DTV channel assignments for eligible licensees in the Fifth Report and Order in the same docket.). A. DTV Transition 5. In early 2006, Congress enacted significant statutory changes to the DTV transition in the DTV Act. Most importantly, it set February 17, 2009, as the date certain for the end of the DTV transition, at which time all full-power television broadcast stations must cease their analog transmissions. (See 47 U.S.C. 309(j)(14) (``A full-power television broadcast license that authorizes analog television service may not be renewed to authorize such service for a period that extends beyond February 17, 2009.''). See also 47 U.S.C. 337(e).) The DTV Act does not provide for waivers or extensions of this deadline for cessation of analog broadcasts. (Previously, 47 U.S.C. 309(j)(14) provided an exception to the earlier December 31, 2006 transition deadline under several market-by-market criteria. 47 U.S.C. 309(j)(14)(B) (2005). Congress eliminated the statutory provisions authorizing market-specific extensions of the DTV transition, including the 85 percent benchmark for DTV reception. This new hard deadline obviates the need for any further discussion of how to interpret and implement the former Section 309(j)(14)(B) of the Act, an issue previously deferred by the Second DTV Periodic Report and Order, 69 FR 59500, October 4, 2004.) The DTV Act also requires broadcast licensees to cease operations outside the core spectrum after February 17, 2009 in order to make that spectrum available for public safety and commercial wireless uses. All full-power TV broadcast stations must be operating inside the core TV spectrum and only in digital at the end of the transition on February 17, 2009. 6. In April 2007, the Commission initiated this third periodic review of the nation's conversion from analog to DTV broadcasting. The Commission sought comment on a range of proposals intended to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels upon expiration of the February 17, 2009 transition deadline. The Commission made a number of proposals regarding the procedures and standards applicants must follow in filing applications for facilities specified in the final, post-transition DTV Table of Allotments (``DTV Table''). 7. Development of DTV Table. In the 2004 Second DTV Periodic Report and Order, the Commission established a three-round channel-election process through which eligible broadcast licensees and permittees (collectively, ``licensees'') selected their post-transition channels inside the core TV spectrum (i.e., channels 2-51). (The Commission received 11 petitions for reconsideration of the Second DTV Periodic Report and Order, raising a number of issues, most of which have been rendered moot by the completion of the channel election process.) At the start of this process, licensees proposed their post-transition facilities. (In November 2004, licensees filed certifications via FCC Form 381 in order to define their proposed post-transition facilities. In these certifications, licensees chose whether to (1) replicate their allotted facilities, (2) maximize to their currently authorized facilities, or (3) reduce to a currently authorized smaller facility). Stations that did not submit certification forms by the deadline were evaluated based on replication facilities. After each channel election round, the Commission announced proposed post-transition channels-- called tentative channel designations (``TCDs''). In order to facilitate the development of a final, post-transition DTV Table, the Media Bureau announced a freeze on the filing of certain requests for allotment or service area changes. (The freeze, which was imposed on August 3, 2004--prior to the commencement of the channel election process, precludes parties from filing the following items: (i) Petitions for rulemaking to change DTV channels within the current DTV Table, (ii) petitions for rulemaking to establish a new DTV channel allotment, (iii) petitions for rulemaking to swap in-core DTV and NTSC channels; (iv) applications to change DTV channel allotments among two or more licensees; (v) petitions for rulemaking by licensees/permittees to change NTSC channels or communities of license; (vi) applications to maximize DTV or analog TV facilities; and (vii) certain Class A television station applications. The freeze does not prevent the processing of pending applications.) The Commission has maintained the filing freeze to ensure that each station has an opportunity to apply for and construct its authorized facility. (In the Seventh Report and Order, 72 FR 54720, September 26, 2007, we denied seven requests of stations seeking a waiver of the filing freeze, except for one station which demonstrated unique circumstances.) 8. The channel election process culminated in the adoption of the post- [[Page 5638]] transition DTV Table in the August 2007 Seventh Report and Order. (Approximately 123 stations have filed petitions for reconsideration of the Seventh Report and Order, which remain pending. Most of the Petitions request changes to facilities previously certified. These requests will be addressed in a separate Order of Reconsideration after the conclusion of the period for oppositions and responses. In the Eighth Further Notice of Proposed Rulemaking (Eighth FNPRM) 72 FR 54720, September 26, 2007, which accompanied the Seventh Report and Order, the Commission announced TCDs for three new permittees that recently attained permittee status and also considered requests for substantive modifications to the post-transition DTV Table which were made after the close of the comment period for the Seventh FNPRM. Comments on these proposed changes to DTV Table in the Eighth FNPRM were due Oct. 10, 2007 and replies were due Oct. 25, 2007). The post- transition DTV Table provides eligible stations channels for post- transition operations inside the core TV spectrum and is the result of informed decisions made by eligible licensees during the Commission's channel election process, as well as the Commission's efforts to promote overall spectrum efficiency and ensure that broadcasters provide the best possible service to the public, including service to local communities. The post-transition DTV Table will ultimately replace the current (pre-transition) DTV Table at the end of the transition; however, we note that, in certain defined circumstances, stations may be permitted to temporarily remain on their pre-transition DTV channel after the transition date. (As explained below in Section V.B.7.a., some stations will be permitted to use their pre-transition DTV channel, temporarily, after the February 17, 2009 transition date. The current NTSC Table, which is contained in 47 CFR 73.606(b), will become obsolete at the end of the transition, when all full-power analog operations must cease. We anticipate initiating another proceeding to address these and other ``clean-up'' changes to our rules to eliminate outdated references to analog and out-of-core operations.) 9. Approximately 123 Petitions for Reconsideration of the Seventh Report and Order were filed by October 26, 2007, the close of the pleading cycle, representing approximately 200 stations, most of them requesting changes to their Appendix B facilities to accommodate their preference to use their existing analog antenna when they return to their analog channel for post-transition digital operation. (We addressed and resolved 30 similar requests that were raised during the comment period for the Seventh Report and Order, and we will address these additional requests on reconsideration.) In addition, we have received several Petitions for Reconsideration filed after the 30-day statutory deadline. Moreover, we recognize that not all stations that may want to revise their Appendix B facilities to assure that they will be permitted to continue serving their analog viewers with their post- transition digital facility have filed Petitions for Reconsideration, and that not all of those stations that have failed to file petitions can be, alternatively, fully addressed through the application process adopted in this Report and Order. Therefore, in light of the urgent need to finalize post-transition facilities so that all full power stations can complete the transition by February 17, 2009, we delegate to the Media Bureau the authority to amend the DTV Table of Allotments and Appendix B to the DTV Table of Allotments as needed up to the full power transition deadline. Such proceedings at the Bureau level may be expedited as necessary, including being conducted without notice and comment where good cause is found because the requested change does not adversely affect any other station's post-transition operations. (See 5 U.S.C. 553(b)(3)(B) (allowing for implementation without notice and comment if good cause exists where ``notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest''). Where any requested change to the Table or Appendix may affect another station's operations, we expect the Bureau to issue an NPRM and provide an opportunity for public comment. Stations should file in Docket No. 87-268 when seeking a correction to Appendix B.) 10. Reclamation of the 700 MHz Bands. As a result of the DTV transition, 108 megahertz of spectrum in the 700 MHz Band (TV Channels 52-69) will be made available for critically important public safety needs and new wireless services. In passing the DTV Act, Congress directed the Commission to commence the auction of recovered analog broadcast spectrum no later than January 28, 2008, and deposit the proceeds of the auction in the Digital Television Transition and Public Safety Fund no later than June 30, 2008. Accordingly, in April 2007, we made changes to the 700 MHz band plan to enable public safety entities to use wireless broadband technology and prepare for the auction of the remaining spectrum in that band. Furthermore, in July 2007, we specifically redesignated 10 megahertz of public safety 700 MHz spectrum (763-768/793-798 MHz) for the purpose of establishing a nationwide, interoperable broadband public safety communications network. The Wireless Telecommunications Bureau has scheduled the auction of the remaining commercial spectrum of the 700 MHz Band on January 24, 2008. 11. Prior to the DTV Act, the Commission reallocated the 700 MHz Band in separate proceedings, first for the 60 megahertz covering TV Channels 60-69 (``Upper 700 MHz Band'') and then for the 48 megahertz covering TV Channels 52-59 (``Lower 700 MHz Band''). In the Balanced Budget Act of 1997 (``Balanced Budget Act''), Congress specifically directed that the allocation of the Upper 700 MHz Band include 24 megahertz of spectrum for public safety and 36 megahertz for commercial services. Accordingly, the Commission divided the Upper 700 MHz Band to include a 24-megahertz allocation for public safety use, and a 36- megahertz allocation for commercial use, of which 6 megahertz comprised the Guard Bands spectrum. With regard to the Lower 700 MHz Band, Congress also directed that the Commission ``reclaim and organize'' spectrum beyond that in the Upper 700 MHz Band, ``in a manner consistent with the objectives'' of Section 309(j)(3) of the Act. While Congress did not direct the amount of spectrum to be reclaimed, the Commission determined that all broadcasters using digital transmission systems could be accommodated in the core TV spectrum (i.e., TV Channels 2-51). As a result, the 48 megahertz of spectrum in the Lower 700 MHz Band (698-746 MHz) would become available for new services through competitive bidding. (The Commission stated that expanding the DTV core spectrum would permit recovery of 108 megahertz of spectrum at the end of the DTV transition period.) B. DTV Construction Deadlines 12. In 1997, the Commission adopted a DTV construction schedule that provided for varying construction deadlines based on the size of the market and type of station, with all stations required to construct by May 1, 2003. (Under this schedule, television stations in the 10 largest TV markets and affiliated with the top four television networks (ABC, CBS, Fox, and NBC) were required to build DTV facilities by May 1, 1999. Stations affiliated with those networks in [[Page 5639]] television markets 11 through 30 were required to construct their DTV facilities by November 1, 1999. All other commercial stations were required to construct their DTV facilities by May 1, 2002, and all noncommercial stations were to have constructed their DTV facilities by May 1, 2003. 47 CFR 73.624(d)(1).) In the 2004 Second DTV Periodic Report and Order, the Commission established two deadlines by which stations were expected to either replicate or maximize DTV service on their current (pre-transition) DTV channel or lose interference protection to the unserved areas on that channel. By July 1, 2005, top- four network affiliates in the top 100 markets were required to fully replicate or maximize if they will remain on their DTV channel after the transition. If these stations were to move to another channel post- transition, they were required to serve at least 100 percent of their replication service population by July 1, 2005. By July 1, 2006, all other stations were required to fully replicate and maximize if they were to remain on their current DTV channel after the transition. If they were to move to another channel post-transition, they were required to serve at least 80 percent of their replication service population by July 1, 2006. The Commission stated that stations that met the applicable ``use-or-lose'' deadline and that are going to move to a different channel after the transition would be permitted to carry over their authorized maximized areas to their new channels. In addition, these ``use-or-lose'' replication/maximization deadlines became the new deadlines for stations operating temporary DTV facilities pursuant to STA to complete construction of their licensed DTV facilities. (In 2001, the Commission temporarily deferred (until the Second DTV Periodic Review) the establishment of construction deadlines for these stations, provided they constructed initial DTV facilities designed to serve at least their communities of license.) Approximately 80 percent of the stations in each of these categories met their respective deadlines. 13. In the Second DTV Periodic Report and Order, the Commission also noted that certain stations had not yet been granted an initial DTV construction permit. The Commission required that, by August 4, 2005, all such stations construct and operate ``checklist'' facilities that conform to the parameters of the DTV Table and other key processing requirements. The Commission stated that it would consider requests for waiver of the August 4, 2005 deadline on a case-by-case basis, using the criteria for extension of DTV construction deadlines. (``Checklist'' facilities have power and antenna height equal to or less than those specified in the DTV Table and are located within a specified minimum distance from the reference coordinates specified in the DTV Table. Because these facilities comply with the interference requirements specified in the rules, no further consideration of interference is required. In addition, because the DTV Table was coordinated with Canada and Mexico, ``checklist'' facilities generally did not require further international coordination.) 14. In 2007, the Commission in the Construction Deadline Extension Order and the Use or Lose Order addressed applications filed by stations for extensions of time to construct DTV facilities and/or waivers of the deadline by which stations must build DTV facilities in order to retain the ability to carry over interference protection to their post-transition channel (so-called ``use or lose'' waivers). In the Construction Deadline Extension Order, the Commission considered 145 requests for an extension of time to construct a DTV facility. (The Commission granted 140 of these extension requests, 110 of which were to stations remaining on their current DTV channel for post-transition use.) For 107 stations whose pre-transition DTV channel is the same as their post-transition channel, the Commission granted these applications and gave these stations until November 18, 2007, in which to complete construction. For 29 stations whose pre-transition DTV channel is different from their post-transition channel, the Commission granted these applications and gave these stations until 30 days after the effective date of the amendments to section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding in which to complete construction. (As discussed in the Third DTV Periodic Review NPRM, at para. 73, the Commission also granted CP extensions until February 17, 2009 to four stations, facing unique technical challenges (e.g., side-mounted/top-mounted antenna- related issues) preventing them from completing construction of their DTV facilities. As discussed in the Third DTV Periodic Review NPRM at para. 77, the Commission denied the extension requests of five stations: Two of which met their DTV construction obligations and were permitted to continue to operate their licensed facilities, while the other three stations were admonished for failing to meet their DTV construction obligations. In the Use or Lose Order, the Commission considered 192 requests for waiver of the ``use or lose'' deadlines. The Commission granted 185 of these ``use-or-lose'' waiver requests, 130 of which were to stations remaining on their current DTV channel for post-transition use. The Use or Lose Order was adopted simultaneously with the Construction Deadline Extension Order.) For 102 stations whose pre-transition DTV channel is the same as the station's post-transition DTV channel, the Commission granted these stations a waiver and gave them until November 18, 2007, to meet the ``use or lose'' deadline. (The Commission granted these applications an additional six months from the release date of the Use or Lose Order in which to complete construction.) For 38 stations whose pre-transition DTV channel is different from the station's post-transition channel, the Commission granted these stations a waiver and gave them until 30 days after the effective date of the amendments to section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding in which to complete construction. (As discussed in the Third DTV Periodic Review NPRM, at para. 73, the Commission also granted 45 stations, facing unique technical challenges (e.g., side- mounted antenna-related issues) preventing them from meeting the applicable replication/maximization requirements, ``use or lose'' waivers and CP extensions until February 17, 2009. As discussed in the Third DTV Periodic Review NPRM, at para. 78, the Commission denied the ``use or lose'' waiver requests of seven stations. As discussed in the Third DTV Periodic Review NPRM, para. 75, the Commission granted 10 stations their requests for waiver of the ``checklist'' deadline (the August 4, 2005 deadline established for all television stations to construct and operate ``checklist'' DTV facilities).) In both of these orders, the Commission reminded stations that the hard deadline for termination of analog TV service prevents consideration of any request for extension of full-power analog TV service beyond that date. The Commission advised stations given an extension or waiver to utilize this time to take all steps possible to complete construction as further extension or waiver requests may be evaluated under a more stringent standard. Those stations that have a construction permit for which the original time to complete construction has not yet expired or that had their original construction permit [[Page 5640]] extended to a date that has not yet expired were not addressed in the Construction Deadline Extension Order or Use-or-Lose Order. These stations were directed to continue to follow existing rules and procedures (i.e., continue to build their current DTV construction permit and, if that construction permit will expire before they can complete construction, file a request to obtain Commission approval for extension of the construction permit). (Third DTV Periodic Review NPRM, at para. 57. Since the release of the Construction Deadline Extension and Use-or-Lose orders, 83 stations have filed extension requests and 69 stations have filed for use-or-lose waivers. These numbers include requests for additional time as well as new requests filed with respect to deadlines that occurred after the Orders were drafted. The Third DTV Periodic Review NPRM did not require the usual reporting and progress requirements for some stations according to the rules of the Construction Deadline Extension Order, in light of the ongoing consideration of this Report and Order. Third DTV Periodic Review NPRM, at para. 77 n. 142. Similarly, the Third DTV Periodic Review NPRM withheld admonishment of some stations under the Use or Lose Order pending adoption of rules in this proceeding. Third DTV Periodic Review NPRM, at para. 78.) IV. Progress Report 15. The transition to DTV is a complex undertaking, affecting virtually every segment of the television industry and every American who watches television. The Commission has been facilitating the transition to DTV by adopting a standard for digital broadcasting, creating an initial and post-transition DTV Table, awarding DTV licenses, establishing operating rules for the new service, monitoring the physical build-out of DTV broadcast stations, and helping to educate consumers about the transition. At the end of the transition, television broadcast operations will be limited to the core TV spectrum. (The ``core spectrum'' is comprised of low-VHF channels 2 to 4 (54-72 MHz) and 5 to 6 (76-88 MHz), high-VHF channels 7 to 13 (174- 216 MHz) and UHF channels 14-51 (470-698 MHz), but does not include TV channel 37 (608-614 MHz), which is used for radio astronomy research. See 47 CFR 73.603(c).) This will enable the recovery of a total of 108 MHz of spectrum (i.e., TV channels 52-69) for critically important public safety needs and new wireless services. A. DTV Operations 16. As of December 17, 2007, 1,706 television stations in all markets (representing approximately 99 percent of all stations) have been granted a DTV construction permit (``CP'') or license. A total of 1,635 stations are now broadcasting a digital signal. Of these, 1,396 stations have authorized licensed facilities or program test authority and 239 stations are operating pursuant to STA or experimental DTV authority. 17. In the top 30 television markets, all 119 top-four network- affiliated television stations are on the air in digital; 113 are licensed DTV facilities or program test authority and six have STAs. In markets 1-10, all 40 top-four network affiliated stations are providing digital service, 38 with licensed DTV facilities and two with STAs. In markets 11-30, all 79 top-four network affiliated stations are providing DTV service, 75 with licensed DTV facilities and four with STAs. 18. Approximately 1,230 commercial television stations were due to commence digital broadcasts by May 1, 2002. As of December 17, 2007, 1,157 of these stations (94 percent) are broadcasting a digital signal. In addition, approximately 373 NCE television stations were required to commence digital operations by May 1, 2003. As of December 17, 2007, 359 (96 percent) of these stations are broadcasting a digital signal. B. Consumer Capability To Receive DTV Signals 19. Over-the-Air Viewer Reception. As of January 1, 2007, Nielsen estimates that 36.6 million people or 13 percent of people in the United States relied only on over-the-air television. In addition Nielsen estimates that 15.2 million households, or 14 percent of television households, watched television via an over-the-air signal only. Nielsen predicts that by January 1, 2008, fewer people, specifically 33.6 million, or 12 percent of people in the United States, will watch television via an over-the-air signal only. In terms of households, Nielsen estimates much fewer, 13 percent of all television households, or 14.3 million households, will be over-the-air only. 20. The demand for DTV sets has grown with increased availability of DTV programming and receiving equipment and a steady drop in the price of such equipment. The Consumer Electronics Association (``CEA'') reports that the consumer electronics industry has invested $66.7 billion in DTV products since 1998. Moreover, CEA reports more than $75 billion in consumer investment in DTV products. According to CEA, 23.9 million DTV sets and monitors were sold in 2006. CEA predicts that 29.2 million DTV products will be sold in 2007, 33.4 million in 2008, 35.2 million in 2009 and 36.4 million in 2010. CEA estimates that total digital display unit sales will increase by 30 percent in 2007, as compared to 2006. Sales of high-definition television sets are expected to increase to 20.7 million in 2007, a significant increase from 17.3 million sold the previous year. 21. To promote the availability of reception equipment and protect consumers by ensuring that their television sets continue to work in the digital world just as they do today, the Commission established a DTV tuner mandate, which required that all television receiver equipment (e.g., TV sets (all sizes), VCRs, digital video recorders, and any other TV receiving devices) shipped in interstate commerce or imported into the United States, for sale or resale to the public, must be capable of receiving the signals of DTV broadcast stations over-the- air by March 1, 2007. (See 47 CFR 15.117(a). In 2002, the Commission initiated the DTV tuner mandate, with a phase-in period based on screen size to minimize the cost impact on consumers. In 2005, the Commission accelerated the implementation of the DTV tuner mandate to become effective on March 1, 2007 and expanded the mandate to include television sets less than 13 inches.) 22. In another consumer protection effort, the Commission adopted an order in April 2007, to require that, as of May 25, 2007, retailers that continue to sell analog-only television equipment provide consumers with information regarding the February 17, 2009 transition date at the point of sale of DTV television receiving equipment. Specifically, the Commission now requires sellers of television receiving equipment that does not include a digital tuner to disclose at the point-of-sale that such devices include only an analog tuner and, therefore, will require a converter box to receive over-the-air broadcast television after the February 17, 2009 transition date. (Specifically, the Labeling Order (72 FR 26554, May 10, 2007) requires that anyone that sells or offers for sale or rent television receiving equipment that does not contain a DTV tuner must display the following consumer alert, in a size of type large enough to be clear, conspicuous and readily legible, consistent with the dimensions of the equipment and the label, at the point of sale: ``CONSUMER ALERT: This [[Page 5641]] television receiver has only an analog broadcast tuner and will require a converter box after February 17, 2009, 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. For more information, call the Federal Communications Commission at 1-888-225-5322 (TTY: 1-888-835-5322) or visit the Commission's digital television Web site at: http://www.dtv.gov.'' This requirement applies to the sale or rent of such equipment via direct mail, catalog, or electronic means (e.g., the Internet).) As we noted in this order, consumers expect that DTV television receiving equipment for sale today that is capable of receiving television is and will continue to be able to receive over-the-air broadcast signals, and, if not, then such material information should be disclosed prior to purchase. The successful completion of the DTV transition depends upon satisfaction of this basic consumer expectation. 23. We also note that subsidized digital-to-analog (``D-to-A'') converter boxes will be available to eligible consumers starting January 2008, further promoting access to digital reception equipment. (47 U.S.C.A. Section 309 Note. 47 CFR part 301. Starting January 1, 2008, all U.S. households will be eligible to request up to two $40 coupons to be used toward the purchase of up to two D-to-A converter boxes, while the initial $990 million allocated for the program is available. 47 CFR 301.3-4. If the initial funds are used up and the additional funds (up to $510 million) are authorized, eligibility for the coupons will be limited to over-the-air-only television households. Eligible consumers will have until March 31, 2009, to make a request for these coupons.) This subsidy program, which was created by the DTV Act, will allow consumers with analog-only TV sets to receive over-the- air broadcast programming after the February 17, 2009, transition date, when analog broadcasting ends. Congress directed the National Telecommunications and Information Administration (``NTIA'') of the U.S. Department of Commerce to administer this subsidy program. (The DTV Act Section 3005(a)(1) directs the Assistant Secretary for Communications and Information to ``implement and administer a program through which households in the United States may obtain coupons that can be applied toward the purchase of digital-to-analog converter boxes.'' The purpose of the program is to enable consumers to continue receiving broadcast programming over the air using analog-only televisions not connected to cable or satellite service.) In March 2007, NTIA issued final rules to implement the program, which subsidizes the purchase of D-to-A converter boxes. (NTIA established rules for the coupon program in 47 CFR part 301. The rules became effective April 16, 2007.) The Commission is working with NTIA to test the D-to-A converters for eligibility to be certified for the coupon program. 24. The Commission has also taken action to ensure that all cable subscribers, including those with analog TV sets, can view broadcast television after the DTV transition. Approximately 35 percent of all television homes, or approximately 40 million households, are analog- only cable subscribers. 25. In September 2007, the Commission adopted rules ensuring that the 98 million TV viewers retain the same access to their local stations after the transition as they do today. The rules will require cable operators to comply with the statutory viewability requirement by choosing to either: (1) Carry digital signals in analog format, or (2) for all-digital systems, carry the signals only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content. The viewability requirements will be in force from the date of the transition through February 2012 subject to review by the Commission during the last year of this period. 26. The Commission also reaffirmed the existing material degradation standard for cable carriage of digital signals, including the requirement that cable systems carry high definition (``HD'') broadcast signals in HD format. In addition, the Commission has taken several actions to increase consumer awareness about the impending DTV transition. Successful completion of the DTV transition depends upon government and industry working together to promote consumer awareness and minimize the burdens borne by consumers. In July 2007, the Commission adopted a Notice of Proposed Rulemaking for the Commission's Digital Television Consumer Education Initiative (``DTV Consumer Education NPRM '' 72 FR 46014, August 16, 2007), which requested comment on several proposals relating to consumer education about the DTV transition, including considering the best means of creating a coordinated, national DTV consumer education campaign. (Alternatively, the notification could describe how to get service from another station affiliated with the same network and serving the same lost area.) We proposed to require television broadcast licensees to conduct on-air consumer education efforts and to require ``broadcast licensees and permittees to report, every 90 days, their consumer education efforts, including the time, frequency, and content of public service announcements aired by each station in a market, with civil penalties for noncompliance.'' (Comments were due September 17, 2007 and reply comments were due October 1, 2007. An order addressing the proposals in this docket was circulated on October 16, 2007. See Written Statement of the Honorable Kevin J. Martin, Chairman, Federal Communications Commission, Before the Committee on Energy and Commerce, Subcommittee on Telecommunications and the Internet, U.S. House of Representatives (dated October 17, 2007); http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-277414A1.doc.v ). It also sought comment on proposals about notices in MVPD customer billing statements, notices from consumer electronics manufacturers, and consumer electronics retailer training and education, among others. 27. In addition, on September 26, 2007, the Commission held the first in a series of Commission Digital Television Consumer Education Workshops. (The workshops will focus on communities that have been identified as being likely to be disproportionately impacted by the transition and least aware of it. These communities include, for example, seniors, minorities and non-English speakers, people with disabilities, low-income earners, and those living in rural areas. On November 8, 2007, the Commission hosted a workshop that addressed issues related to ensuring that seniors are prepared for the DTV transition. On December 4, 2007, the Commission hosted a workshop that addressed issues related to ensuring that minority and non-English- speaking consumers are prepared for the DTV transition.) These workshops provide an opportunity for all interested parties to jointly discuss the challenges associated with the upcoming transition and explore ways to develop coordinated consumer education activities. The Commission invites organizations representing a broad range of consumers and other stakeholders to participate, including those who represent senior citizens, low-income consumers, non-English speakers, people with disabilities, tribes, and public interest organizations working on behalf of [[Page 5642]] underserved customers or those living in rural areas. V. Final DTV Transition Rules 28. By statute, full-power television broadcast stations must cease analog operations by 11:59 p.m. on February 17, 2009. Accordingly, our focus is now on overseeing broadcasters' construction of facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. Specifically, this Report and Order adopts rules to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post- transition (digital) channels by the expiration of the transition deadline on February 17, 2009. We take seriously our goal to ensure that consumers who have diligently prepared for the transition by obtaining the necessary DTV receiver equipment are able to, at a minimum, continue to watch their existing television programming after the transition date. In order to make this transition as smooth as possible for consumers, stations must have their digital facilities in place and ready to commence operations no later than 12:00 a.m. on February 18, 2009. We recognize that the transition is a complex undertaking presenting many challenges to the broadcast industry and that some disruption of television service may be unavoidable leading up to the analog turn-off. Accordingly, we adopt rules, where possible, to offer broadcasters some regulatory flexibility. At the same time, however, we must still ensure that DTV broadcasters will at least reach the audiences that they have been serving with their analog service and that, after the transition date, viewers will continue to have access to the stations that they are accustomed to receiving over the air. 29. Stations are reminded that their authority to operate on a pre- transition channel, whether analog or digital, ends on February 17, 2009. Continued operation of analog or pre-transition digital facilities after that date is operation without a license and will result in the imposition of sanctions for unauthorized operations. Only stations that have applied for and been granted specific authority to remain on a pre-transition digital channel may continue operating on that channel. As noted in the Third DTV Periodic Review NPRM, we recognize that there may be some situations where a station's ability to commence its post-transition operations will be dependent on another station's construction and operating plans. For example, station A may need to begin testing its digital facility on its post-transition channel in order to be ready to operate after the transition date, but station B is currently using the channel for pre-transition (analog or digital) service. In such situations, close cooperation will be needed between these stations. We expect that broadcasters will make all possible accommodations to ensure that all stations will be able to provide digital service on their post-transition channels at the transition date. 30. We begin by, first, adopting our proposal to gather information about each station's transition status and plan to meet the deadline. Second, we adopt our proposed deadlines for the construction and operation of stations' final digital facilities. Third, we adopt our proposed stricter standards for granting stations extensions of time to construct digital facilities. Fourth, we adopt our proposals to permit qualifying stations to make a ``phased transition'' in an effort to afford regulatory relief without undermining the expectations of over- the-air viewers. Fifth, we adopt flexible rules allowing stations to reduce and/or terminate their analog and pre-transition digital television service before the transition deadline if doing so is necessary to achieve their transition. Sixth, we adopt our proposal to permit qualifying stations to transition early. Seventh, we address the rules, procedures and interference standards for stations to file applications for construction permits to build their final, post- transition facilities and to request authori